Most of the law on trade disputes and industrial action is contained in theIndustrial Relations Act 1990. Under Section8 of the Act a trade dispute “means any dispute between employers andworkers which is connected with the employment or non-employment, or the termsor conditions of or affecting the employment, of any person”. An industrialaction is any action which may affect the terms of a contract which is taken byworkers acting together to compel their employer “to accept or not to acceptterms or conditions of or affecting employment.” Examples of industrialaction include a work to rule, a picket, an overtime ban or a strike.
Trade unions
As an employee you have a constitutional right to join a trade union, you also have the right to jointhe union of your choice and the right to leave a union.
In employment law there is no right to take industrial action but there areprotections for certain workers who do this by, for example, going on strike.Part 2 of the Industrial Relations Act 1990 provides workers, who are takingpart in peaceful industrial action, the following immunities from:
- Criminal or civil proceedings for conspiracy to do a particular act if the action taken by a person acting alone would not be punishable as a crime. Even if you are not a member of a trade union, you benefit from this immunity.
- Prosecution when taking part in peaceful picketing. Only members and officials of an authorised trade union get the benefit of this immunity
- Prosecution for inducements to break or threats to break contracts of employment. Again, only members and officials of an authorised trade union get the benefit of this immunity.
Unfair dismissal
Under section5 of the Unfair Dismissals Act 1977 the dismissal of an employee for takingpart in a strike or other industrial action is unfair if:
- One or more of the other employees taking part in the action were not dismissed
Or
- One or more of the other employees who were dismissed, were later reinstated or re-engaged and the employee was not
This was amended by section4 of the Unfair Dismissals (Amendment) Act 1993 which extends thisdefinition of unfair dismissal to include less favourable treatment afterreinstatement or re-engagement after a strike or a lockout.
Lockout is where an employer excludes the employees from work or suspendswork or terminates their employment. In unfair dismissals legislation, alockout is considered a dismissal. Again, under Section 5 of the UnfairDismissals Act 1977, it is considered an unfair dismissal if an employee is notreinstated or re-engaged after a lockout and one or more of the other employeesare.
Dismissal for trade union activity or membership is automatically unfairunder Section6 of the Unfair Dismissals Act 1977. An employee dismissed in suchcirc*mstances does not require any particular length of service in the job inorder to enforce his/her rights. The definition of trade union activity isactivity carried out with the employer’s consent or outside working hours.Strikes or other industrial action are not covered by this definition.
Victimisation
The Workplace Relations Commission’s Codeof Practice on Victimisation refers to victimisation arising from anemployee’s membership or non-membership, activity or non-activity for a tradeunion or a manager discharging their managerial functions or any otheremployees. It applies to situations where there are no negotiating arrangementsand where collective bargaining has not taken place.
The term victimisationis used to describe unfair treatment of an employee (including a manager). Itdoes not include dismissal – see ‘Unfair dismissal’ above. If you feelyou have been victimised you can make a complaint to the WorkplaceRelations Commission under the Industrial Relations (MiscellaneousProvisions) Act 2004 using the onlinecomplaint form available on workplacerelations.ie.
Other employment issues
Pay: Under the Payment of Wages Act 1991, deductionsfrom your pay by your employer are allowed when they arise due to yourbeing on strike.
Minimum pay: In the calculation of hourly rate of pay,‘working hours’ does not include time when you were on strike.
Redundancy: Time spent on strike does not break thecontinuity of service required to qualify for redundancy.However any time spent on strike during the last 3 years of your employment isnon-reckonable when calculating the statutory redundancy payment.
Public holiday: You are not entitled to public holidaybenefits if you have been absent from work immediately before the publicholiday and your absence is due to a strike.
Social welfare
If you are on strike, you are not considered unemployed and are not entitledto Jobseeker'sBenefit or Allowance. However you may qualify for credits for the durationof the strike. Your family may get SupplementaryWelfare Allowance.
You won't normally be eligible for an AdditionalNeeds Payment if you are involved in a trade dispute or on strike. However,a dependent adult or dependent child of a person on strike can apply.
If you are out of work as a result of a strike (for example, you have beenlaid off), you are in a different position. You may qualify for Jobseeker'sBenefit if you are not participating in or directly interested in the tradedispute which caused the stoppage at work.
Dispute resolution
The WorkplaceRelations Commission (WRC) and the LabourCourt operate a dispute resolution mechanism.
