FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(5), EMPLOYEES (PROVISION OF INFORMATION AND CONSULTATION) ACT, 2006 PARTIES : S & S HYGIENE LTD - AND - MIROSLAV AVIZEN DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Night work pay.
BACKGROUND:
2. The Worker referred his case to the Labour Court in accordance with Section 15(1) of the Information and Consultation Act, 2006 on the 20th November, 2012. A Labour Court hearing took place on the 4th April, 2013. The Employer did not attend and was not represented at the hearing. The following is the Determination of the Court:
DETERMINATION:
The complaint was referred to the Court under Section 15 (1) of the Information and Consultation Act 2006 (the Act).
Section 15 of the Act states
15.— (1) Disputes between an employer and one or more employees or his or her representatives (or both) concerning:
(a) negotiations undersection 8or10,
(b) interpretation or operation of any agreement undersection 8or9,
(c) interpretation or operation of the Standard Rules undersection 10(as set out in Schedule 1 ) or the procedures for election of employees’ representatives (as set out in Schedule 2 ), or
(d) interpretation or operation of a system of direct involvement undersection 11may, subject to subsection (2), be referred by the employer, one or more than one employee or his or her representatives (or both) to the Court for investigation.
(2) Such a dispute may be referred to the Court only after—
a) recourse to the internal dispute resolution procedure (if any) in place in the employment concerned has failed to resolve the dispute, and
(b) the dispute has been referred to the Commission which, having made available such of its services as are appropriate for the purpose of resolving the dispute, furnishes a certificate to the Court stating that the Commission is satisfied that no further efforts on its part will advance the resolution of the dispute.
(3) Having investigated a dispute under subsection (1), the Court may make a recommendation in writing giving its opinion in the matter.
(4) Where, in the opinion of the Court, a dispute that is the subject of a recommendation under subsection (3) has not been resolved, the Court may, at the request of—
(a) an employer, or
(b) one or more employees or their representatives (or both),
and, following a review of all relevant matters, make a determination in writing.
(5) Disputes between an employer and one or more than one employee or his or her representatives (or both) concerning
(a) instances where the employer refuses to communicate information or undertake consultation undersection 14(4) or (5),
(b) instances where the employer discloses information to an individual to whomsection 14(1) applies subject to the condition that the information is not to be disclosed to a third party due to its confidential nature, or
(c) instances where an individual to whom section 14 (1) applies discloses information, which in the legitimate interest of the undertaking has been expressly provided to him or her in confidence, to employees or to third parties not subject to a duty of confidentiality may be referred by the employer, one or more employees or his or her representatives (or both) to the Court for determination.
(6) As regards a dispute referred to it under subsection (1) or (5), the Court shall—
(a) give the parties an opportunity to be heard by it and to present any evidence relevant to the dispute,
(b) make a recommendation or, as the case may be, determination in writing in relation to the dispute, and
(c) communicate the recommendation or, as the case may be, determination to the parties.
(7) The following matters or procedures to be followed in relation to them, shall be determined by the Court, namely:
(a) the procedure in relation to all matters concerning the initiation and hearing by the Court of a dispute under this section;
(b) the times and places of hearings of such disputes;
(c) the publication and notification of recommendations and determinations of the Court;
(d) any matters consequential on, or incidental to, the matters referred to in paragraphs (a) to (c).
(8) In deciding what constitutes confidential information, the Court may be assisted by a panel of experts
(9) A party to a dispute under this section may appeal from a determination of the Court to the High Court on a point of law and the decision of the High Court shall be final and conclusive.
(10) The Court may refer a question of law arising in proceedings before it under this section to the High Court for determination and the decision of the High Court shall be final and conclusive.
The matter before the Court relates to a complaint by the Worker that he has not been paid the appropriate rate for work he performs. This is not a matter that comes within the scope of Section 15(1) of the Act. Furthermore Section 15(2) of the Act sets out a number of conditions that must be met before the dispute may be referred to the Court. In this case none of those conditions have been satisfied.
As the requirements of Sections 15(1) and 15(2) of the Act have not been satisfied the Court does not have jurisdiction to consider the dispute.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
16th April 2013______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.