The following is an extract from DAO Bulletin No 4 issued by the Decisions Advisory Office in July 1998
Table of Contents
The Four key elements
Trade Disputes and Qualified Adults on other SW claims
Definition of a trade dispute
Case No 55: All workers on strike
Case No 56 Separate place of employment
Case No 57: Sit-in following closure
Case No 58: Part-time worker involved in a strike
Case No 59: Work resumption delayed after settlement of dispute
Case No 60: Work resumption delayed by other causes
Case No 61: Person not involved in a dispute but has a direct interest
Case No 62: Employment elsewhere during strike
Case No 63: Temporary employment on another site by same employer
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
JA 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:
- there is a trade dispute; and
- it is at the claimant's place of employment; and
- it has resulted in a stoppage; and
- 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 331-333 of the Social Welfare Consolidation Act 2005].
Trade Disputes and Qualified Adults on other SW Claims
A person who is disqualified for
JA 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 Social Welfare Consolidation Act 2005].
Section 68 of the Social Welfare Consolidation Act 2005 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 Jobseeker's 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 147 (2) and (3) of the Social Welfare Consolidation Act 2005 contain similar provisions as respects Jobseeker's Allowance 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 Social Welfare Consolidation Act 2005 '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
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
JB 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
JB 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
JB 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.