DAO Bulletin Issue No 4 Issued July 1998


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Trade Dispute provision

  1. The Four key elements
  2. Trade disputes and qualified adults on other SW claims
  3. Legislation
  4. Definition of a trade dispute

Case No.

  1. All workers on strike
  2. Separate place of employment
  3. Sit-in following closure
  4. Part-time worker involved in a strike
  5. Work resumption delayed after settlement of dispute
  6. Work resumption delayed by other causes
  7. Person not involved in a dispute but has a direct interest
  8. Employment elsewhere during strike
  9. Temporary employment on another site by same employer

UA/UB claims by students

Case No.

  1. UA following Post-Leaving Course
  2. UB while on part-time educational course
  3. Payment of UA/UB while sitting an examination

Insurability Cases

  1. Insurability of Civil/Public Servants
  2. Insurability of Secondary Teacher
  3. Insurability of Primary Teacher
  4. Insurability of Substitute Teacher
  5. Insurability of demonstrators/merchandisers

Other Cases

Case No.

  1. UB for person with other occupation
  2. Payment of CDI in respect of an orphan

TRADE DISPUTE PROVISION

Social Welfare legislation provides that a person who has lost his/her employment because of a stoppage of work due to a trade dispute is disqualified for receiving UB or UA other than in certain defined circumstances. Determining whether disqualification applies or not can be very difficult - each case is different and has to be looked at very carefully to establish the facts of the situation.

We hope that the following hypothetical cases [Nos. 55-63] help clarify the critical elements to be taken into account by the Deciding Officer in determining whether disqualification applies or not. However, please be aware that these cases are rather simplistic and that in practice there could be other factors present which would have to be considered and which could lead to a different decision.

The Four key elements:

The Deciding Officer has to determine whether:

  1. there is a trade dispute;
    and
  2. it is at the claimant's place of employment;
    and
  3. it has resulted in a stoppage;
    and
  4. the claimant has lost employment as a result of the stoppage (including whether the stoppage has ended).

If all 4 elements are not present, disqualification does not apply. If all 4 elements are present, the claimant can avoid disqualification only if s/he can show that s/he is not participating in or directly interested in the dispute.

Note:
The Deciding Officer is solely concerned with determining the facts of the situation in relation to the four elements mentioned above. Accordingly, the merits of the dispute or whether the parties have acted reasonably is not relevant to his/her decision. However, the circumstances of the dispute can be relevant if the case is referred to the Social Welfare Tribunal for determination [Sections 274-276 of the Act].

Trade Disputes and Qualified Adults on other SW claims

A person who is disqualified for UA or UB because of a trade dispute, or would be if s/he made such a claim, cannot be accepted as a qualified adult on a spouse's claim for any social welfare payment. [Section 2(2)(iv) of the Principal Act]

Legislation

Section 47 of the Principal Act provides as follows:

"(1) A person who has lost employment by reason of a stoppage of work which was due to a trade dispute at the factory, workshop, farm or other premises or place at which he was employed shall be disqualified for receiving unemployment benefit so long as the stoppage of work continues, except in a case where he has, during the stoppage of work, become bona fide employed elsewhere in the occupation which he usually follows or has become regularly engaged in some other occupation:

Provided that the foregoing provisions of this subsection shall not apply to a person who is not participating in or directly interested in the trade dispute which caused the stoppage of work.

(2) Where separate branches of work which are commonly carried on as separate businesses in separate premises or at separate places are in any case carried on in separate departments on the same premises or at the same place, each of those departments shall, for the purposes of subsection (1), be deemed to be a separate factory, workshop or farm or separate premises or a separate place, as the case may be."

Sections 125 (3) and (4) contain similar provisions as respects unemployment assistance claimants and trade disputes.

Definition of a trade dispute

""trade dispute" means any dispute between employers and employees, or between employees and employees, which is connected with the employment or non-employment or the terms of employment or the conditions of employment of any persons, whether employees in the employment of the employer with whom the dispute arises or not". [Section 2 of the Act 'definitions']

Case No 55: All workers on strike

Q. A company which manufactures steel goods employs clerical staff, production workers and skilled workers (fitters, electricians, etc.) The clerical and production workers are members of a different trade union to the skilled workers. A dispute arose in the company concerning its proposals to dismiss four clerical workers on grounds of redundancy. The Unions objected to the proposed dismissals mainly on the grounds that the selection of the people to be let go breached the principle "last in, first out". When negotiations failed to resolve the problem, strike notice was served and a strike of the clerical workers commenced with an ordinary picket. All the other workers at the factory (production and skilled workers) supported the clerical workers and refused to pass the picket. Are all the workers subject to disqualification of UB?

A. Yes, because all 4 elements (i) to (iv) are present. None of the workers escape disqualification. Those not directly involved (production and skilled workers) are participating in the strike.

Case No 56 Separate place of employment

Q. A supermarket chain has its own bakery in one branch that services all the other branches. A strike at the bakery results in the sales staff at the bakery counter in all branches being laid off. The counter staff are members of a different union to the bakery staff and are not participating and do not stand to gain from the dispute. Are the counter staff disqualified because they work for the same employer?

A. No, disqualification would not be appropriate to any of the counter staff because the bakery could be regarded as a separate place of employment to the sales counter i.e. element (ii) above is not present. But note that if the counter staff stood to gain from the dispute or if they supported it by withdrawing their labour, it would mean that there is a dispute at their place of employment and they would be subject to disqualification.

Case No 57: Sit-in following closure

Q. A company closes down pending the sale of the plant to a new owner, and the staff are all given their P45s. They dispute the terms of redundancy, and stage a sit-in in the factory, hoping to negotiate terms of employment with the prospective buyers. Are they disqualified?

A. No, because the stoppage of work is not due to a trade dispute. Instead, work stopped as a result of the employer's business decision to sell the plant.

Case No 58: Part-time worker involved in a strike

Q. A bus-driver was working 3 days a week and claiming UB for the other 3 days. The bus company closed down during a dispute, in which the driver was participating. Should the disqualification be applied for the full week or only for the 3 days he was normally working?

A. Only 3 days employment was lost because of the stoppage. For the other 3 days UB may be paid, because the loss of employment on these days is not due to the dispute.

Case No 59: Work resumption delayed after settlement of dispute

Q. Workers in a heavy engineering plant have settled their dispute with management. However they cannot be re employed until maintenance (which became necessary because of the
shut-down of the machinery during the dispute) has been carried out. Can the disqualification be lifted because the dispute has ended?

A. No, because the continuing stoppage of work is due to the trade dispute.

Case No 60: Work resumption delayed by other causes

Q. Workers are unable to return to work following a settlement of the dispute because the premises was flooded due to a bad storm. Can the disqualification be lifted?

A. Yes. In this case, the disqualification ceases to apply following the settlement of the dispute.

Case No 61: Person not involved in a dispute but has a direct interest

Q. Workers at a food processing plant were advised by the company that it proposed to introduce changes in work practices at the plant. One of the changes involved was linked to a National Pay award. Three of the four categories of workers employed at the plant accepted the company's proposals; the fourth category did not accept. The company decided to close the plant until all workers had agreed to the proposals.

A. Although three categories of the workers were happy with the company's proposal and were prepared to continue working, they had, nonetheless, lost their employment by reason of a stoppage of work due to a trade dispute. Their claims for UB would therefore be disqualified. As they had a direct interest in the trade dispute (they stood to gain or lose by the outcome of the dispute) they would not escape disqualification under the proviso.

Case No 62: Employment elsewhere during strike

Q. A worker involved in a long-running dispute at her place of employment, goes to England and works there for 4 months. On losing her job there, she returns to Ireland to seek further employment. The trade dispute at her previous place of employment is still continuing but she says he is willing to take up employment wherever she can find it and is not waiting for the settlement of that dispute. Should the disqualification be re-imposed because the dispute is still continuing?

A. No, provided the person concerned can satisfy the Deciding Officer that she was genuinely employed elsewhere (i.e. that her employment in England was not a sham to avoid disqualification), she can be considered to have no longer lost employment due to the stoppage of work.

Case No 63: Temporary employment on another site by same employer

Q. The labourers employed directly by the main contractor on a large building site are involved in an unofficial dispute, and place pickets on the site. Labourers employed by a sub-contractor refuse to pass the picket; some of them are re-deployed by their employer to another site for a few weeks, but are then laid off as he has no other work for them. Do they escape disqualification because of their employment elsewhere?

A. No. The underlying reason why they are out of work is that they are refusing to pass the picket on the large building site, and therefore participating in the dispute. The few weeks work for the same employer on another site would not constitute "becoming employed elsewhere" for this purpose.


UA/UB CLAIMS BY STUDENTS

Case No 64: UA following Post-Leaving Course

Q. Ms T finished school in June 1997 after doing the Leaving Cert. In September she enrolled in a one-year Post- Leaving Cert. course at the local VEC. She finished that course in May 1998 and claimed UA. Is she entitled to payment of UA or should she be disqualified on the ground that she is attending a course of study?

A. UA is payable in this case because the PLC is finished. Under the legislation a person who has been attending a course of education is regarded as continuing to attend that course for the period immediately following the completion of one academic year up to the commencement of the following academic year.

In the normal way, therefore, a student is disqualified for UA for this period. However, the legislation also provides that disqualification does not apply where the person has completed "the final academic year of a course of study". As the PLC that Ms T attended was a one-year course, it was the final academic year for this purpose and, therefore, UA is payable from May 1998 onwards.

(If the PLC had been a 2 year course, disqualification would be appropriate as the final academic year would not have been completed)
[Section 126 (3)(c) of the Principal Act]

Case No 65: UB while on part-time educational course

Q. Mr W is an apprentice electrician. As part of his apprenticeship he attends classes at the VEC every Thursday. He was made redundant recently and is now in receipt of UB. He continues to attend class on Thursdays - can he be paid UB for that day?

A. Yes, claimants who engage in part-time education courses are entitled to draw UA or UB provided they can show that they remain available for and genuinely seeking work. Once the Deciding Officer is satisfied that the education course is being pursued on a genuine part-time basis, the claimant may draw UA/UB for days of attendance at school or college, whether the class-hours are compressed into one or two days or spread over the full week. In this case, it appears clear that Mr W is engaged in a part-time course.

Case No 66: Payment of UA/UB while sitting an examination

Q. Ms R has been in receipt of UA for the last year. She has been studying for the Leaving Certificate in her spare time and has been attending evening classes at the local VEC. She is due to sit the Leaving Cert. examination shortly on various days and half-days over a two-week period. Is she entitled to be paid UA for the exam days?

A. Yes, as Ms R is participating in a part-time educational course, she may be paid UA for any days on which s/he sits an examination for that course. This would also apply if the part-time course consisted of attending classes on odd days during the week.


INSURABILITY CASES

Case No 67: Insurability of Civil/Public Servants

Q. Mr O'R was appointed to the civil service in a permanent capacity in October 1997. He had been working abroad from March 1996 to September 1997 but had previously (July 1992-Feb. 96) worked in a temporary capacity in the public service. What rate of PRSI is payable in respect of his current employment?

A. Class A. From the 6 April 1995 all new entrants into the public service are insurable at PRSI Class A. If a person was temporary on 6/4/95 and subsequently was made permanent without a break in service then Class D/B would be payable from the date of appointment to a permanent position. However, if (as in the case of Mr O'R), a person was temporary or permanent on the 6 April 1995 and had a break in their contract of employment after that date, then on re-entry s/he would be regarded as a new entrant and Class A PRSI applicable.

[S.I. 77/95 refers].

Case No 68: Insurability of Secondary Teacher

Q. Ms S is a secondary school teacher who was not in the Department of Education Superannuation Scheme on 6 April 1995. She is paying Class A PRSI. She has recently joined the Superannuation Scheme. What Class PRSI is now payable?

A. Class D is payable from date of admittance into the Superannuation scheme provided Ms S had no break in service from 6/4/95 to date of admittance into the scheme. If there was a break in service then Class A is payable.

Case No 69: Insurability of Primary Teacher

Q. Ms W was a primary school teacher (temporary) from January 1993 to September 1997 when she was made permanent. What Class of PRSI is payable?

A. Class D. Prior to 6 April 1995 primary school temporary teachers were insurable at PRSI Class D for the weeks they were employed through the Department of Education.

However after 6 April 1995 the PRSI Class D only continued if they were in continuous employment. (This applies in the case of Ms W). If they had a break in their contract then Class A was payable.

Case No 70: Insurability of Substitute Teacher

Q. Mr P is a teacher who does substitute work. What Class of PRSI is payable?

A. Class A - all substitute teaching is insurable at Class A only, never Class D.

Case No 71: Insurability of demonstrators/merchandisers

The Supreme Court ruled on 1 December 1997 that a person who was employed as a demonstrator/merchandiser with Kerry Foods was employed under a contract of service. Consequently all workers employed as demonstrators/merchandisers are insurable at Class A/J provided the terms and conditions of the employment are the same as in this case. [A copy of the Judgement 'Henry Denny & Son T/A Kerry Food v Minister for Social Welfare' is available from Scope Section].

Background:
A contract for service was drawn up by Kerry Foods for demonstrators/merchandisers and the Supreme Court was satisfied that the conditions of their employment was more appropriate to a contract of service. The general contents of this contract are as follows:

  1. Kerry Foods is willing to retain the person's services as a demonstrator/merchandiser and pointed out that the person will not be an employee of Kerry Foods but an independent contractor.
  2. The person will be responsible for their own tax affairs.
  3. Kerry Foods at its discretion may retain the services of the demonstrator, give not less than 24 hours notice of the retention of the services and the demonstrator can send a substitute provided the substitute is approved by Kerry Foods.
  4. The demonstrator shall be neat and tidy, be properly attired and wear such uniform, jackets, coats or head-dress as Kerry Foods may require.
  5. The demonstrator shall attend at the time and location specified by Kerry Foods.
  6. The demonstrator shall abide by the regulations of the place where the demonstration is taking place and in cases of dispute with the conditions available the sales manager of Kerry Foods will make a decision on the matter.
  7. Kerry Foods shall terminate the contract in cases of misconduct or neglect of obligations.
  8. The demonstrator shall be an independent contractor, a master/servant relationship shall not exist and the provisions of the Unfair Dismissals Act 1977 shall not apply.
  9. All clothing and equipment shall be the sole property of Kerry Foods.
  10. The remuneration is a fee from which the demonstrator is to discharge such taxes and charges which may be due.
  11. The demonstrator was to indemnify the appellants against claims for loss and damage sustained as a result of his/her actions.
  12. The demonstrator cannot operate for a competitor as long as his/her services is available to Kerry Foods.
  13. Each demonstration shall be a separate contract.

OTHER CASES

Case No 72: UB for person with other occupation

Q. Mr McD is 58 years of age. He was employed as an insurance broker with a large insurance company for many years and has a full PRSI (Class A) record. During most of that time he also engaged in self-employment. He was recently made redundant by the insurance company and claimed UB. He continues to engage in the self-employment from which he earns about £50 a week. Is he entitled to UB in this situation?

A. Yes, UB can be paid for the full period of interruption of employment. Under the legislation a day is treated as a day of unemployment if the claimant is following an occupation which could ordinarily have been followed by him/her in addition to his/her usual employment and outside the ordinary working hours of that employment and either (a) the remuneration or profit does not exceed #10 a day or (b) not less than 117 contributions have been paid in respect of the person in the 3 years immediately preceding the date of claim for UB or in the 3 contribution years before that date. Given his contribution record, Mr McD would qualify under (b).

[Article 26(1) and (2) of S.I. 417/94]

Case No 73: Payment of CDI in respect of an orphan

Q. A woman named Mary is in receipt of One-Parent Family Payment for herself and 3 children. Her younger sister Anne, aged 17, lives with her. Both of their parents are dead and Anne is in receipt of Orphan's Contributory Allowance. Mary has now claimed for Anne as her child dependant. Is she entitled to CDI for her as part of her OFP? If so, can Anne retain entitlement to Orphan's Allowance?

A. No, Under the overlapping payments legislation, child dependant's increase and orphan's contributory allowance cannot both be paid in respect of the same child. [Section 209(2) of the Social Welfare (Consolidation) Act, 1993 refers]

Note:
If the orphan (Anne in the above example) was personally entitled to receive One-Parent Family Payment or one of certain other benefits, this may be paid simultaneously with orphan's contributory allowance,with orphan's non-contributory pension and with orphan's pension under OIB Scheme. [Article 126 of S.I 417/94 refers]. See guidelines on Overlapping Payments for fuller detail.

Last modified:17/08/2010
 

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