Industrial Relations (Amendment) Act 2012

PART 1 Preliminary and General

1. Short title, collective citations, construction and commencement.

1.— (1) This Act may be cited as the Industrial Relations (Amendment) Act 2012.

(2) The Industrial Relations Acts 1946 to 2004 and this Act (other than sections 16, 17 and 18) may be cited together as the Industrial Relations Acts 1946 to 2012 and shall be construed together as one.

(3) The Employment Permits Acts 2003 and 2006 and section 16(1)may be cited together as the Employment Permits Acts 2003 to 2012 and shall be construed together as one.

(4) The Protection of Employees (Employers’ Insolvency) Acts 1984 to 2004 and section 17 may be cited together as the Protection of Employees (Employers’ Insolvency) Acts 1984 to 2012 and shall be construed together as one.

(5) The Terms of Employment (Information) Acts 1994 and 2001 and section 18 may be cited together as the Terms of Employment (Information) Acts 1994 to 2012 and shall be construed together as one.

(6) This Act shall come into operation on such day or days as the Minister for Jobs, Enterprise and Innovation 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.

2. Definitions.

2.— In this Act—

“Act of 1946” means the Industrial Relations Act 1946;

“Act of 1990” means the Industrial Relations Act 1990.

3. Repeals.

3.— (1) Section 49(2) and section 58 of the Act of 1946 are repealed.

(2) Section 39 of the Act of 1990 is repealed.

PART 2 Registered Employment Agreements

4. Amendment of section 25 of Act of 1946.

4.— Section 25 of the Act of 1946 is amended—

(a) by deleting the definition of “registered”, and

(b) by substituting the following definition for the definition of “registered employment agreement”:

“the expression ‘registered employment agreement’ means—

(a) in the case of an agreement registered before the commencement of Part 2of the Industrial Relations (Amendment) Act 2012, an employment agreement for the time being registered in the register, and

(b) in the case of an agreement registered after the commencement of Part 2of the Industrial Relations (Amendment) Act 2012, an employment agreement for the time being registered in the register, the terms of which have been confirmed by order of the Minister under section 27,

and the word ‘registered’ shall be construed accordingly.”.

5. Amendment of section 27 of Act of 1946.

5.— Section 27 of the Act of 1946 is amended—

(a) by substituting the following subsection for subsection (2):

“(2) Every application to register an employment agreement shall be accompanied by—

(a) a copy of the agreement, and

(b) confirmation, in such form and accompanied by such documentation as the Court may specify, that the parties to the agreement are substantially representative of the workers and employers in the class, type or group to which the agreement is expressed to apply.”,

(b) in subsection (3) by inserting the following paragraph after paragraph (a):

“(aa) that it is appropriate to do so having regard to the matters specified in subsections (3A) and (3B),”,

(c) by inserting the following subsections after subsection (3):

“(3A) The Court shall not register an agreement under subsection (3) unless it is satisfied that—

(a) the parties to the agreement are substantially representative of the workers and employers in the sector in question, and in satisfying itself in that regard the Court shall take into consideration—

(i) the number of workers represented by the trade union party, and

(ii) the number of workers employed by the employer or the number of workers employed by employers represented by a trade union of employers,

in the class, type or group of workers to which the agreement is expressed to apply, and

(b) registration of the agreement is likely to promote—

(i) harmonious relations between workers and employers, and

(ii) the avoidance of industrial unrest.

(3B) When considering whether it is appropriate to register an agreement under subsection (3), other than an agreement applying to a single employer, the Court shall have regard to the following:

(a) that the agreement will be binding on all workers and employers in the sector in question;

(b) the desirability of maintaining established arrangements for collective bargaining;

(c) the benefits of consultation between worker and employer representatives at enterprise and sectoral level;

(d) the experience of registration and variation of employment agreements in the sector in question;

(e) the potential impact on employment levels in the sector in question of registering an employment agreement;

(f) the desirability of agreeing and maintaining fair and sustainable rates of remuneration in the sector in question;

(g) the desirability of maintaining competitiveness in the sector in question;

(h) the levels of employment and unemployment in the sector in question;

(i) the terms of any relevant national agreement relating to pay and conditions for the time being in existence;

(j) the general level of wages in comparable sectors;

(k) where enterprises in the sector in question are in competition with enterprises in another Member State, the general level of wages in the enterprises in that other Member State taking into account the cost of living in the Member State concerned.”,

(d) by inserting the following subsection after subsection (5):

“(5A) (a) Where, after the commencement of Part 2of the Industrial Relations (Amendment) Act 2012, the Court registers an employment agreement, the Court shall forward a copy of the agreement to the Minister.

(b) As soon as practicable after receipt of a copy of the agreement, the Minister shall, where he or she is satisfied that subsections (1) to (5) have been complied with, and where he or she considers it appropriate to do so, by order confirm the terms of the agreement, from such date (on or after the date of the order) as the Minister shall specify in the order.

(c) Where the Minister is not satisfied that subsections (1) to (5) have been complied with, or where he or she considers that it is not appropriate to confirm the terms of the agreement, he or she shall—

(i) refuse to make an order to confirm the terms of the agreement, and

(ii) notify the Court in writing of his or her decision and the reasons for the decision.

(d) Every order under paragraph (b) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(e) Nothing in this subsection shall affect the validity of an employment agreement registered before the commencement of Part 2of the Industrial Relations (Amendment) Act 2012.”,

and

(e) by inserting the following subsection after subsection (6):

“(7) A registered employment agreement may provide that an employer may apply to the Court under section 33A for an exemption from the obligation to pay the rate of remuneration provided by the agreement.”.

6. Variation of registered employment agreements.

6.— The Act of 1946 is amended by substituting the following section for section 28:

“28.— (1) Subject to this section, any party to a registered employment agreement may apply to the Court to vary the agreement in its application to any worker or workers to whom it applies.

(2) Where all parties to the registered employment agreement agree to vary the agreement in the terms of the proposed application, the Court shall within 6 weeks of receipt of an application under subsection (1) consider the application and shall hear all persons appearing to the Court to be interested and desiring to be heard.

(3) Not later than 4 weeks after considering an application under subsection (2) and where it is satisfied that it is appropriate to do so having regard to the matters specified in subsections (3A) and (3B) of section 27, the Court shall, as it thinks fit, refuse the application or make an order varying the agreement in such manner as it thinks proper.

(4) Where a party to a registered employment agreement wishes to apply to the Court to vary the agreement, and the other party or parties to the agreement do not agree with the proposed variation, a party to the agreement may invoke the dispute resolution procedures contained in the agreement.

(5) Where the parties to the registered employment agreement have complied with subsection (4) and have failed to reach agreement, a party to the agreement may refer the dispute to the Labour Relations Commission for conciliation.

(6) Following a referral of a dispute to the Labour Relations Commission under subsection (5), where the parties to the dispute have failed to arrive at a settlement of the dispute through conciliation, the Commission shall, within 6 weeks of referral of the dispute, forward a report to the Court stating that it is satisfied that no further efforts on its part will advance the resolution of the dispute and, notwithstanding section 26 of the Industrial Relations Act 1990, the Commission shall request the Court to investigate the dispute.

(7) On receipt of a report under subsection (6), the Court shall consider the application and shall hear all persons appearing to the Court to be interested and desiring to be heard, and the Court shall, within 6 weeks of receipt of the report, issue a recommendation to the parties to the registered employment agreement setting out its opinion on the merits of the dispute and the terms on which it should be settled.

(8) Where, 6 weeks after the date on which a recommendation under subsection (7) has issued, the dispute has not been resolved, a party to the agreement may apply to the Court to vary the agreement in the terms of the Court’s recommendation.

(9) The Court shall consider an application under subsection (8) and shall hear all persons appearing to the Court to be interested and desiring to be heard, and after such consideration, where it is satisfied that it is appropriate to do so having regard to the matters set out in subsections (3A) and (3B) of section 27, the Court may, within 6 weeks of receipt of the application, as it thinks fit, refuse the application or make an order varying the agreement in such manner as it thinks proper.

(10) (a) An employer to whom a registered employment agreement applies who is not a party to the agreement may, subject to this subsection, apply to the Court to vary the agreement in its application to any worker or workers to whom it applies.

(b) The Court shall not hear an application under paragraph (a) unless the applicant satisfies the Court that since the date on which the employment agreement was registered or last varied under this section there has been a substantial adverse change in the economic circumstances of the sector to which it relates.

(c) Where the Court is satisfied pursuant to paragraph (b) it shall notify the parties to the agreement of the application.

(d) The Court shall, within 6 weeks of notification of the parties pursuant to paragraph (c), hear all persons appearing to the Court to be interested and desiring to be heard, and where it is satisfied that it is appropriate to do so having regard to subsections (3A)(b) and (3B) of section 27, the Court shall, not later than 4 weeks after hearing the relevant persons, as it thinks fit, refuse the application or make an order varying the agreement in such manner as it thinks proper.

(e) An employer may not make an application under paragraph (a) in respect of a registered employment agreement until at least 12 months after—

(i) the date on which the agreement was registered or last varied under this section, or

(ii) the date on which any previous application under paragraph (a) in respect of the agreement was refused by the Court,

whichever is the later.

(11) (a) Where, after the commencement of Part 2of the Industrial Relations (Amendment) Act 2012, the Court makes an order varying an agreement (in this subsection referred to as a ‘variation order’) the Court shall forward a copy of the variation order to the Minister.

(b) As soon as practicable after receipt of a copy of a variation order, the Minister shall, where he or she is satisfied that this section has been complied with, and where he or she considers it appropriate to do so, by order confirm the terms of the variation order, and the order shall have effect from such date (on or after the date of the order) as the Minister shall specify in the order.

(c) Where the Minister is not satisfied that this section has been complied with, or where he or she considers that it is not appropriate to confirm the terms of the variation order, he or she shall—

(i) refuse to make an order to confirm the terms of the variation order, and

(ii) notify the Court in writing of his or her decision and the reasons for the decision.

(d) Every order under paragraph (b) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(e) Nothing in this subsection shall affect the validity of an order varying a registered employment agreement made before the commencement of Part 2of the Industrial Relations (Amendment) Act 2012.”.

7. Amendment of section 29 of Act of 1946.

7.— Section 29 of the Act of 1946 is amended—

(a) by substituting the following subsections for subsection (2):

“(2) The Court may on its own initiative or on written application to it by an interested party and shall, at the request of the Minister, review a trade or business to which a registered employment agreement relates.

(2A) For the purposes of a review under subsection (2), the Court may commission a report in relation to the circumstances of the trade or business concerned and shall hear all persons appearing to the Court to be interested and desiring to be heard.

(2B) Following a review under subsection (2), the Court may where it is satisfied that it is appropriate to do so—

(a) having regard to the matters specified in subsection (3A) of section 27 and the findings contained in any report commissioned under subsection (2A), and

(b) having considered any submissions made by interested persons,

cancel the registration of an employment agreement if satisfied that there has been such substantial change in the circumstances of the trade or business to which it relates that it is undesirable to maintain registration.”,

and

(b) by inserting the following subsections after subsection (5):

“(6) The Court may cancel the registration of an employment agreement if it is satisfied, having regard to section 27(3A)(a), that the trade union of workers or employers or trade union of employers who were parties to the agreement are no longer substantially representative of the workers or employers concerned.

(7) (a) Where, after the commencement of Part 2of the Industrial Relations (Amendment) Act 2012, the Court cancels the registration of an employment agreement, the Court shall forward a copy of the cancellation to the Minister.

(b) As soon as practicable after receipt of a copy of the cancellation, the Minister shall, where he or she is satisfied that the relevant provisions of this section have been complied with, and where he or she considers it appropriate to do so, by order confirm the terms of the cancellation, from such date (on or after the date of the order) as the Minister shall specify in the order.

(c) Where the Minister is not satisfied that the relevant provisions of this section have been complied with, or where he or she considers that it is not appropriate to confirm the terms of the cancellation, he or she shall—

(i) refuse to make an order to confirm the terms of the cancellation, and

(ii) notify the Court in writing of his or her decision and the reasons for the decision.

(d) Every order under paragraph (b) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”.

8. Amendment of section 32 of Act of 1946.

8.— Section 32 of the Act of 1946 is amended—

(a) by substituting the following subsection for subsection (4):

“(4) If an employer fails to comply with an order under paragraph (b) of subsection (1) within 28 days from the date on which the terms of the order are communicated to the parties, the Circuit Court shall, on application to it in that behalf by—

(a) the worker concerned (or, in the case of a worker who has not reached the age of 18 years, the worker’s parent or guardian with his or her consent),

(b) with the consent of the worker, any trade union of which the worker is a member, or

(c) the Minister, if the Minister considers it appropriate to make the application having regard to all the circumstances,

without hearing the employer or any evidence (other than in relation to the matters aforesaid), make an order directing the employer to comply with the terms of the order.”,

and

(b) by inserting the following new subsections:

“(5) The reference in subsection (4) to an order of the Labour Court is a reference to such order in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought or, if such an appeal has been brought it has been abandoned and the references to the date on which the terms of the order are communicated to the parties shall, in a case where such an appeal is abandoned, be construed as references to the date of such abandonment.