Industrial Relations (Miscellaneous Provisions) Act 2004

AN ACT TO MAKE FURTHER AND BETTER PROVISION FOR PROMOTING HARMONIOUS RELATIONS BETWEEN WORKERS AND EMPLOYERS, TO AMEND AND EXTEND THE INDUSTRIAL RELATIONS ACTS 1946 TO 2001, TO AMEND THE PROTECTION OF EMPLOYEES (EMPLOYERS' INSOLVENCY) ACT 1984, AND TO PROVIDE FOR RELATED MATTERS.

[9th March 2004]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1. Interpretation.

1.—(1) In this Act—

“Act of 2001” means the Industrial Relations (Amendment) Act 2001;

“Court” means the Labour Court;

“employee” has the same meaning as “worker” has in section 23 of the Industrial Relations Act 1990;

F1[…]

• (2) In this Act—

• (a) a reference to a section is to a section of this Act unless it is indicated that a reference to some other enactment is intended,

• (b) a reference to a subsection is to a subsection of the provision in which the reference occurs unless it is indicated that a reference to some other provision is intended, and

• (c) a reference to another enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, including this Act.

2. Amendment of section 2 of Act of 2001.

2.—Section 2 of the Act of 2001 is amended by substituting the following for paragraphs (a) and (b) of subsection (1):

• “(a) it is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute,

• (b) either—

  • (i) the employer has failed to observe—

    • (I) a provision of the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 specifying the period of time for the doing of any thing (or such a provision of any code of practice amending or replacing that code), or

    • (II) any agreement by the parties extending that period of time,

    or

  • (ii) the dispute having been referred to the Commission for resolution in accordance with the provisions of such code, no further efforts on the part of the Commission will, in the opinion of the Commission, advance the resolution of the dispute and the Court has received a report from the Commission to that effect,”.

3. Amendment of section 3 of Act of 2001.

3.—The Act of 2001 is amended by substituting the following for section 3:

4. Amendment of section 10 of Act of 2001.

4.—The Act of 2001 is amended by substituting the following for section 10:

5. Transitional provision.

5.—(1) This section applies to a request for an investigation under section 2 of the Act of 2001 made before the commencement of section 2.

• (2) A request to which this section applies shall, as regards its substance, be dealt with under section 2 of the Act of 2001 as if that section 2 had not been amended by this Act but in all other respects in accordance with that section 2 as it stands amended by this Act.

6. Limitation of application of section 2(1)(d) of Act of 2001.

6.—(1) If a trade dispute was, by reason of circumstances prevailing on or before 26 March 2003, not capable, by virtue of paragraph (d) of subsection (1) of the relevant section, of being investigated by the Court under the relevant section, that dispute shall, on and from the commencement of this section, be capable of being so investigated, notwithstanding that paragraph (d), but subject to the other requirements of that subsection (1) being met.

• (2) In subsection (1)—

“circumstances prevailing on or before 26 March 2003” includes circumstances that continued to prevail after that date but which have ceased when this provision comes into operation;

“relevant section” means section 2 of the Act of 2001;

the reference to subsection (1) of the relevant section, where it secondly occurs, is a reference to that subsection (1) as if it had not been amended by this Act.

7. Priority for matters dealt with under Act of 2001.

7.—The following section is inserted after section 7 of the Act of 2001:

8. Prohibition on victimisation.

8.—(1) This section applies where it is not the practice of the employer to engage in collective bargaining F2[…] and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and—

• (a) a trade union F2[…] takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or

• (b) such procedures have been invoked by a trade union F2[…] in relation to a trade dispute, or

• (c) an employee intends to request the trade union F2[…] of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union F2[…] intends to make such a request, or

• (d) such a request by a trade union F2[…] has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or

• (e) the Court determines that those requirements have been met and either—

• (i) that investigation is being or has been carried out, or

• (ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.

• (2) Where this section applies, none of the following—

• (a) the employer,

• (b) an employee, or

• (c) a trade union F2[…] of which an employee is a member,

shall victimise an employee or (as the case may be) another employee in the employment concerned on account of—

• (i) the employee’s being or not being a member of a trade union F2[…], or

• (ii) the employee’s engaging or not engaging in any activities on behalf of a trade union F2[…].

• (3) In this section “victimise”, in relation to an employee, means to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her well being and includes any act specified in a code of practice, prepared under section 42 of the Industrial Relations Act 1990 in relation to conduct prohibited by this section, to be an act falling within the foregoing expression but does not include any act constituting a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001.

• (4) For the avoidance of doubt, “employee” in this section includes any person in the employment concerned the duties of whom consist of or include managing the business or activity to which the employment relates.

• F3[(5) In this section, ‘collective bargaining’ has the meaning assigned to it by section 1A of the Act of 2001 and that section shall apply to this section in the same manner as it applies to that Act.]

9. Complaints of victimisation.

9.—(1) F4[…]

• (2) F4[…]

• (3) F4[…]

• (4) F4[…]

• F5[(5) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 8 shall do one or more of the following, namely—

• (a) declare whether the complaint was or was not well founded,

• (b) direct that the conduct the subject of the complaint cease, or

• (c) require the respondent to pay to the complainant compensation of such amount (if any) as the adjudication officer considers just and equitable in the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.]

• (6) F4[…]

• (7) F4[…]

• (8) F4[…]

• (9) F4[…]

• (10) In this section “employee” shall be construed in accordance with section 8 (4).

10. F6[Decision of Labour Court on appeal from decision referred to in section 9

10. A decision of the Labour Court under section 44 of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to in subsection (5) of section 9, shall affirm, vary or set aside the decision of the adjudication officer.]

11. Power of Court to administer oaths and compel witnesses.

11.—F7[…]

12. Referral to High Court.

12.—F8[…]

13. Enforcement by Circuit Court.

13.—F9[…]

14. Amendment of Industrial Relations Act 1990.

14.—The First Schedule to the Industrial Relations Act 1990 is amended by substituting in column (3), at reference number 7, “€3,000” for “£1,000” and “€1,000” for “£200”.

15. Amendment of Protection of Employees (Employers' Insolvency) Act 1984.

15.—The Protection of Employees (Employers' Insolvency) Act 1984 is amended in section 10 by inserting after subsection (2) the following subsection:

• “(2A) Where the Minister makes a payment to an employee under section 6(2)(a)(iii)(II) (inserted by section 15 of the Redundancy Payments Act 2003) of this Act, that payment shall be recoverable by the Minister as a debt to be paid in priority to all other debts under—

  • (a) section 81 of the Bankruptcy Act 1988, or

  • (b) section 285 (as amended by section 10 of the Companies (Amendment) Act 1982 and section 134 of the Companies Act 1990) of the Companies Act 1963,

  and any amount of that payment which would, but for the limit set by section 6(4)(a) (as may be varied by regulations under section 11(5)), be payable to an employee, shall be treated for all purposes as if it were a payment required to be paid by virtue of an award under section 12(1) of the Act of 1973.”.

16. Repeal.

16.—Section 9 of the Act of 2001 is repealed.

17. Short title, collective citation, construction and commencement.

17.—(1) This Act may be cited as the Industrial Relations (Miscellaneous Provisions) Act 2004.

• (2) In so far as it relates to the Industrial Relations Acts 1946 to 2001, this Act and those Acts shall be construed together as one and may be cited together as the Industrial Relations Acts 1946 to 2004.

• (3) In so far as it relates to the Protection of Employees (Employers' Insolvency) Acts 1984 to 2001, section 15, this subsection and those Acts shall be construed together as one and may be cited together as the Protection of Employees (Employers' Insolvency) Acts 1984 to 2004.

• (4) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.