INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
ESB FISHERIES OFFICE
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Right to represent workers.
2. The Union is seeking recognition for 50 of its members who work 'on-licence' for the ESB as fishermen on the Shannon and its tributaries. The Union was first approached about the matter in May, 2000, by the Officer Board of the Shannon Eel Fisherman's Association and, as a result, the workers joined the Union. The Union wrote to the ESB seeking a meeting in August, 2000. The ESB's view is that "no issue of employment exists between eel fishery permit holders and the ESB."
The ESB regards its work as 'conservationist'. A survey to assess the stock situation of eels took place in 1994. Following this, it was decided to legalise fishing by people who were willing to operate as ESB nominees under a research authorisation. The survey terminated in 1999 and has been replaced by an ongoing monitoring system which is under the direction of NUI Galway. Permit holders are required to conform to a standard set of conditions, including seasons for fishing and hours and methods of fishing.
The Union referred its case to the Labour Court on the 3rd of January, 2000, in accordance with Section 20(1) of the Industrial Relations Act, 1969. Labour Court hearings took place on the 24th of January and 26th of September, 2001, in Limerick. The Union agreed to be bound by the Court's recommendation.
3. 1. The workers concerned consider themselves employees of the ESB. They are not self employed. The ESB advertised for "experienced fishermen" and it is the workers concerned who now form this core group. They carry out the work on a regular and permanent basis.
2. The workers are fully occupied by their duties for 8 or 9 months per year, and this forms the sole source of income in a majority of cases.
3. The workers have no input or avenue for negotiation in respect of the price they receive from the ESB for the eels they catch on its behalf. Neither have they any say in how the work is apportioned. The workers are not permitted to fish elsewhere in the country.
4. 1. The workers concerned are not ESB employees. They are allowed to fish on foot of a permit which is neither a contract of service nor a contract for service.
2. They do not have a contract of employment or relationship with the ESB and, therefore, do not receive a wage or retainer.
3. The quantity of eels the workers catch and present for sale determines the payment they receive. There is no tax or PRSI deducted from payments made. They use their own boats and equipment when fishing and the ESB has no responsibilities in this regard.
The Company stated to the Court that the claimants concerned with this case were not employed by the Company and were, therefore, not "workers" within the meaning of the Industrial Relations Acts, 1946 - 2001, and,as such, the Court had no jurisdiction.
Included in the definition of a "worker" under Section 23 Part iii of the Industrial Relations Act, 1990 is not just a person who works under a contract of employment, but also a person who has entered into or works under a contract to personally execute any work or labour. The Court has given careful consideration to all the arguments made by both parties at the two hearings of this case.
-The ESB is the statutory owner of all fishing rights on the River Shannon under the provisions of the Fisheries Act, 1935.
-The role of the ESB is that of conservationist, which is in no way related to its core activity of electricity generation. This role was assigned to the Company by the government, due to their operation in Ardnacrusha.
-Eel fishing was stopped under a conservation order made by the Department of Marine in the late 1960s. Due to the unlawful continuation of eel fishing, supplementary legislation was introduced in 1994 to ban all eel fishing and dealing without a license, pending assessment of the stock situation.
-Since 1994, the ESB has been carrying out an assessment of eel stocks under the direction of the Zoology Department of NUI Galway.
-Under Section 14 of the Fisheries (Consolidation) Act, 1959, as substituted by Section 4 of the Fisheries (Amendment) Act, 1962, a Research Authorization was granted to ESB Fisheries and/or to ESB nominees to legally catch eels for the purposes of the assessment.
-The survey terminated in 1999 and was replaced with a system of ongoing monitoring, also under the direction of NUIG.
-Permits to catch eels are granted to nominated persons, and are granted for a specific season.
-Permit holders are required to conform to a set of conditions with regard to return of data on fishing efforts and results.
-In response to public advertisement, permits are awarded for a six-month season each year. Failure to comply with any of the conditions may result in revocation of the authorization. The Company states that it is in the interest of individual fishermen to demonstrate commitment to the monitoring studies. Renewal of permits is awarded to people who are genuinely interested as evidenced by fishing efforts and data returns.
-Fishermen pay a fee for the permit to the Shannon Regional Fisheries Board based on the number of nets to be used.
-ESB forwards the samples to NUIG for examination, and the balance is disposed of to dealers in the market.
-ESB is obliged to make returns, under the terms of the Authorization, to the Department of the Marine, the Shannon Fisheries Board and the Marine Institute Stock Assessment Unit.
-Eel fishermen are not permitted to carry an eel dealer’s license by law. Therefore, they are not permitted to fish elsewhere in the country as they could not dispose of their catches.
-The fishermen hand over the eels to the ESB, who sell them on and pay the fishermen for the catch at a fixed price.
-Fishermen use their own boats and equipment. Buoyancy aides and labeled jackets were presented to the fishermen as gifts by the ESB.
The ESB informed the Court that it does not require the eels to be fished for commercial purposes, but is simply making such facilities available on a licensed and restricted basis in keeping with the conservationist role assigned to it under the Fisheries Act, 1935.
While the Court queries the appropriateness of such a role today for a commercial semi-state company, it does accept that the ESB is attempting to operate the Shannon eel fishing in the best interests of those most intensively involved for many years in this activity.
Having considered all the information from both sides, the Court is of the view that while the fishermen may or may not be "employees", it is clear that they have entered into a contract to personally execute work under the auspices of the ESB, as conservationist of the River Shannon, on a short-term permit, for which they are paid by results.
Therefore, the Court is satisfied that they can be regarded as "workers" for the purposes of Section 23 Part iii of the Industrial Relations Acts, 1946 - 2001 (including Section 20 of the 1946 Act).
Given the nature of the working relationship between the claimants and the Company, the Court is of the view that it would not be appropriate to negotiate through the normal industrial relations processes of the ESB. Therefore, the Court recommends that the most appropriate way to progress the matters referred is to establish an agreed mechanism whereby issues of common interests to the parties could be discussed.
The Court recommends the establishment of such a forum without delay.
Signed on behalf of the Labour Court
5th November, 2001______________________
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.