INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 10(1), INDUSTRIAL RELATIONS (MISCELLANEOUS PROVISIONS) ACT, 2004
BUS ATHA CLIATH
(REPRESENTED BY COLM COSTELLO, SOLICITOR)
- AND -
(REPRESENTED BY O'HANRAHAN LALLY SOLICITORS)
Chairman: Mr McGee
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioners Decision pre-hearing of IRM 20875/04.
2. The appeal concerns a worker who submitted a complaint dated 3rd August, 2004 to the Rights Commissioners Service of the Labour Relations Commission. The complaint under Section 9 of the Industrial Relations (Miscellaneous Provisions ) Act, 2004 ("the Act") alleged that his employer Bus Aha Cliath had contravened Section 8 of the Act which concerns the prohibition of victimisation of an employee on account of the employee being a member of or engaging in activities on behalf of a trade union. The issue before the Court is whether the Rights Commissioner has jurisdiction under the Act to hear the worker's claim.
The Rights Commissioner's pre-hearing of the worker's complaint was held on the 11th October, 2004. On the 15th October, 2004 the Rights Commissioner issued his Decision as follows:
"Having considered fully the submissions made by the parties at the pre-hearing held on the 11th October, 2004 my decision is that a Rights Commissioner does not have jurisdiction to hear Mr. Carroll's complaint under the Industrial Relations (Miscellaneous Provisions) Act, 2004. In arriving at my decision on the matter of jurisdiction I did not consider or form any view on the merits or otherwise of Mr Carroll's complaint under the Industrial Relations (Miscellaneous Provisions )Act, 2004................."
The Rights Commissioner's rationale in arriving at his decision was as follows;
Section 8(1) of the Industrial Relations (Miscellaneous Provisions ) Act 2004 states that " this section applies where it is not the practice of the employer to engage in collective bargaining negotiations".
While Dublin Bus does not engage in collective bargaining negotiations with the Independent Workers Union, it does engage in collective bargaining negotiations with SIPTU and the NBRU and Mr Carroll is free to be represented by either of these two Trade Unions that are recognised by the Company.
It is common practice in unionised companies for agreements to be in place that restrict Trade Union recognition and bargaining rights to a specific Trade Union or Unions. While I accept that an employee may choose not to be a member of a specific Trade Union, if he/she choose to disassociate themselves from Trade Union(s) recognised by the Company as having negotiating rights for their grade or category, then, I believe that he /she is prohibited from bringing a complaint under the Industrial Relations (Miscellaneous Provisions) Act, 2004.
Mr Carroll argued that the amendment provided for in Section 2 of the 2004 Act whereby Section 2 of the Industrial Relations (Amendment) Act, 2001 is amended by the inclusion of the words "in respect of the grade, group or category of workers who are party to the trade dispute" after "collective bargaining negotiations " was inserted to cover a situation where an employer engages in collective bargaining negotiations for certain grades, groups or categories of workers but not with others.
While I agree with this interpretation, I do not accept that it applies to Mr Carroll's circumstances as a member of a Trade Union that it is not recognised by his employer. His grade/category (i.e. bus driver) is represented by two Trade Unions that are recognised by his employer Bus Atha Cliath, and these Trade Unions engage in collective bargaining with Bus Atha Cliath on behalf of bus drivers."
On the 23rd November, 2004 the claimant appealed the Rights Commissioner's decision to the Labour Court. The Court heard the appeal on the 15th June, 2005
The Court, having fully considered the submissions of the parties, is of the view that the Decision of the Rights Commissioner, incorporating his rationale for that Decision, as set out, is correct. The Rights Commissioner does not have jurisdiction to hear the complaint.
The Court, therefore, dismisses the appeal.
Signed on behalf of the Labour Court
1st November, 2005______________________
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.