INDUSTRIAL RELATIONS (NO.2) (NORTHERN IRELAND) ORDER 1976

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INDUSTRIAL RELATIONS (NO.2) (NORTHERN IRELAND) ORDER 1976 - SECT 65



65.Para.(1), with Schedule 4, effects amendments.

(2) The transitional provisions in Schedule 5 shall have effect.

Para.(3), with Schedule 6, effects repeals.

Manufacture Regulations

1907.

Compounds) Heading

Regulations 1907.

Regulations 1908.

Hollow-ware, Iron Drums

and Harness Furniture

Regulations 1909.

Manufacture Regulations

1911.

Decoration of Pottery

Regulations 1913.

Manufacture Regualtions

1921.

Regulations 1922.

(Northern Ireland) 1927.

Special Regulations

(Northern Ireland) 1945.

(Sealed Sources) Regulations

(Northern Ireland) 1969.

1. References in this Schedule to provisions of the No. 1 Order relating to
unfair dismissal and to provisions of the Act of 1965 are references to those
provisions as they apply by virtue of Article 30.

2.(1) Article 22 of the No.1 Order (fair and unfair dismissal) shall have
effect as if for paragraph (10) there were substituted the following
paragraph:

"Subject to paragraphs (4), (8) and (9), the determination of the question
whether the dismissal was fair or unfair, having regard to the reason shown by
the employer, shall depend on whether the employer can satisfy the tribunal
that in the circumstances (having regard to equity and the substantial merits
of the case) he would have been acting reasonably in treating it as a
sufficient reason for dismissing the employee if she had not been absent from
work.".

(2) If in the circumstances described in Article 28(4) no offer is made of
such alternative employment as is referred to in that paragraph, then the
dismissal which by virtue of Article 30 is treated as taking place shall,
notwithstanding anything in Article 22 of the No. 1 Order, be treated as an
unfair dismissal for the purposes of the No. 1 Order.

(3) The following references shall be construed as references to the notified
day of return, that is to say

(a)references in the No.1 Order (except in Article 39) to the effective date
of termination;

(b)references in Article 31 of the No. 1 Order to the date of termination of
employment.

(4) The following provisions of the No. 1 Order shall not apply, that is to
say, Articles 21, 22(6) and (7), 24 to 27, 32(7), 34(4), (6) and (7), 35(1) to
(3) and (5), 68(2) and 76(1) to (6).

(5) For the purposes of Part II of Schedule 2 to the No. 1 Order as it applies
for the calculation of a week's pay for the purposes of Article 32 or 34 of
that Order, the calculation date is the last day on which the employee worked
under the original contract of employment.

3.(1) References in the Act of 1965 shall be adapted as follows, that is to
say

(a)references to the relevant date, wherever they occur, shall be construed,
except where the context otherwise requires, as references to the notified day
of return;

(b)references in sections 12(4) and 13(3) of that Act (offer of alternative
employment) to a renewal or re-engagement taking effect immediately on the
ending of employment under the previous contract or after an interval of not
more than four weeks thereafter, shall be construed as references to a renewal
or re-engagement taking effect on the notified day of return or not more than
four weeks after that day; and

(c)references in section 13(5) of that Act (trial period) to the provisions of
the previous contract shall be construed as references to the provisions of
the original contract of employment.

(2) Nothing in Article 30 shall prevent an employee from being treated, by
reason of the operation of section 13(3) of the Act of 1965, as not having
been dismissed for the purposes of that Act.

(3) The following provisions of the Act of 1965 shall not apply, that is to
say, sections 11(1)(b), 12(1) and (2), 13(1), (2) and (10), 14 to 17, 20, 21,
26(1) and (2), 32, 33 and 47, paragraphs 4 and 5(3) and (5) of Schedule 3 and
Schedule 5.

(4) For the purposes of Part II of Schedule 2 to the No. 1 Order as it applies
for the calculation of a week's pay for the purposes of Schedule 3 to the Act
of 1965 (computation of redundancy payments), the calculation date is the last
day on which the employee worked under the original contract of employment.

4.(1) This paragraph applies to the dismissal of an employee who is under the
foregoing provisions of this Order entitled to return to work and whose
contract of employment continues to subsist during the period of her absence
but who is dismissed by her employer during that period after the beginning of
the 11th week before the expected week of confinement.

(2) For the purposes of sub-paragraph (1) an employee shall not be taken to be
dismissed during the period of her absence if the dismissal occurs in the
course of the employee's attempting to return to work in accordance with her
contract in circumstances in which paragraph 5 applies.

(3) In the application of the No. 1 Order to a dismissal to which this
paragraph applies, the following provisions shall not apply, that is to say,
Articles 22(6) and (7), 24, 26, 27 and 76(1) to (6).

(4) Any such dismissal shall not affect the employee's right to return to
work, but

(a)compensation in any unfair dismissal proceedings arising out of that
dismissal shall be assessed without regard to the employee's right to return;
and

(b)that right shall be exercisable only on her repaying any redundancy payment
or compensation for unfair dismissal paid in respect of that dismissal, if the
employer requests such repayment.

5.(1) An employee who has a right both under this Order and under a contract
of employment, or otherwise, to return to work, may not exercise the two
rights separately but may in returning to work take advantage of whichever
right is, in any particular respect, the more favourable.

(2) The provisions of Articles 28 to 30 and paragraphs 1 to 4 shall apply,
subject to any modifications necessary to give effect to any more favourable
contractual terms, to the exercise of the composite right described in
sub-paragraph (1) as they apply to the exercise of the right to return
conferred solely by this Order.

6. If in proceedings arising out of a failure to permit an employee to return
to work, the employer shows

(a)that the reason for the failure is that the employee is redundant; and

(b)that the employee was dismissed or, had she continued to be employed by
him, would have been dismissed, by reason of redundancy during her absence on
a day earlier than the notified day of return and falling after the beginning
of the 11th week before the expected week of confinement,

(i)shall not be treated as having been dismissed with effect from the notified
day of return; but

(ii)shall, if she would not otherwise be so treated, be treated as having been
continuously employed until that earlier day and as having been dismissed by
reason of redundancy with effect from that day.

7. The Department may by order amend the provisions of this Schedule or modify
the application of those provisions to any description of case.

1. A claim may be reported to [the Agency], in accordance with and subject to
the following provisions of this Part, that as respects any worker an employer
is, in respect of any matter, observing terms and conditions of employment
less favourable than the recognised terms and conditions or, where, or so far
as, there are no recognised terms and conditions, the general level of terms
and conditions.

2. In this Part

(a)the "recognised terms and conditions" means terms and conditions of workers
in comparable employment in the trade or industry, or section of a trade or
industry, in which the employer in question is engaged, either generally or in
the district in which he is so engaged, which have been settled by an
agreement or award, to which the parties are employers' associations and
independent trade unions which represent (generally or in the district in
question, as the case may be) a substantial proportion of the employers and of
the workers in the trade, industry or section, being workers of the
description to which the agreement or award relates; and

(b)the "general level of terms and conditions" means the general level of
terms and conditions observed for comparable workers by employers

(i)in the trade, industry or section in which the employer in question is
engaged in the district in which he is so engaged; and

(ii)whose circumstances are similar to those of the employer in question,

3. No claim shall be reported under paragraph 1 as respects workers whose
remuneration or terms and conditions, or minimum remuneration or terms and
conditions, is or are fixed (otherwise than by the employer, with or without
the approval of any other person) in pursuance of any statutory provision
other than

(a)the Agricultural Wages (Regulation) Act (Northern Ireland) 1939;

(b)the Wages Councils Act (Northern Ireland) 1945; or

(c)this Schedule;

4. A claim may be reported under paragraph 1, where, or so far as, the claim
is founded upon recognised terms and conditions, by an employers' association
or an independent trade union being one of the parties mentioned in
paragraph 2(a).

5.(1) A claim may be reported under paragraph 1, where, or so far as, the
claim is founded upon the general level of terms and conditions, by

(a)an employers' association having members engaged in the trade, industry or
section, in the district to which the claim relates; or

(b)subject to sub-paragraph (2), a trade union of which any worker concerned
is a member.

(2) Where any such worker is of a description in respect of which an employer
recognises one or more independent trade unions, such a claim may be reported
by a trade union only if it is that recognised union or, as the case may be,
one of those recognised unions.

6. A claim under paragraph 1 shall be in writing and shall contain such
particulars as [the Agency] may require.

7. When a claim is reported to [the Agency] under paragraph 1, [the Agency]
shall take any steps which seem to it expedient to settle the claim or to
secure the use of appropriate machinery to settle the claim and shall if the
claim is not otherwise settled refer it to the Industrial Court.

8. The Industrial Court shall hear and determine the claim and it shall be for

(a)the party making the claim to show that there are recognised terms and
conditions and what those terms and conditions are, or, as the case may be,
what the general level of terms and conditions is; and

(b)the employer to satisfy the Industrial Court that he is observing terms and
conditions of employment not less favourable than the recognised terms and
conditions or, as the case may be, the general level of terms and conditions.

9. In ascertaining whether, in respect of any matter which is the subject of a
claim under paragraph 1, the employer is observing terms and conditions less
favourable than the recognised terms and conditions or, as the case may be,
the general level of terms and conditions regard shall be had to the whole of
the terms and conditions observed by the employer as respects the worker to
whom the claim relates.

10. If the Industrial Court finds the claim wholly or partly well-founded it
shall make an award that the employer shall observe the recognised terms and
conditions or, as the case may be, terms and conditions conforming to the
general level of terms and conditions and shall identify or specify

(a)the recognised terms and conditions or, as the case may be, terms and
conditions conforming to the general level of terms and conditions;

(b)the description or descriptions of employees in respect of which they are
to be observed; and

(c)the date from which they are to be observed, being a date not earlier than
the date on which the employer was first informed of the claim giving rise to
the award by the union or association which reported the claim to [the
Agency].

11. Any terms and conditions which by an award under paragraph 10 the employer
is required to observe in respect of employees of his shall have effect as
part of the contract of employment of any such employee as from the date
specified in the award, except in so far as they are superseded or varied

(a)by a subsequent award under that paragraph;

(b)by a collective agreement between the employer and the trade union for the
time being representing that employee; or

(c)by express or implied agreement between the employee and the employer so
far as that agreement effects an improvement in any terms and conditions
having effect by virtue of the award.

12. Where

(a)by virtue of any statutory provision other than one contained in this Part,
providing for minimum remuneration or terms and conditions a contract of
employment is to have effect as modified by an award, order or other
instrument under that statutory provision, and

(b)by virtue of an award under paragraph 10 any terms and conditions are to
have effect as part of that contract,

13. If in the course of determining a claim under this Schedule it appears to
the Industrial Court that a collective agreement or pay structure within the
meaning of section 3 of the Equal Pay Act (Northern Ireland) 1970 contains any
provision applying specifically to men only or to women only so that it would,
had it been referred to the Industrial Court by the Department under that
section, have required amendment in accordance with subsection (4) of that
section so as to remove that discrimination between men and women

(a)that provision shall not be regarded as part of the recognised terms and
conditions or, as the case may be, shall not be taken into account in
assessing the general level of terms and conditions; and

(b)the Industrial Court shall report its opinion to the Department and, in the
case of a collective agreement, to the parties to that agreement or, in the
case of a pay structure, to the employer concerned.

14. For the purposes of this Schedule the carrying on of the activities of
public or local authorities shall be treated as the carrying on of a trade or
industry.

15. A claim may be reported to [the Agency] under this paragraph by an
independent trade union as respects any worker who is a member of that trade
union and who falls within the field of operation of a wages council or of the
Agricultural Wages Board for Northern Ireland

(a)that the union is a party to one or more collective agreements and that
those agreements cover a significant number of establishments within the field
of operation of that council or Board either generally or in the district in
which the worker is employed; and

(b)that in those establishments the circumstances of the employer are similar
to those of the employer of the worker in question; and

(c)that the employer is paying him less than the lowest current rate of
remuneration (disregarding any rate agreed to more than 12 months before the
date on which the claim was reported) payable to workers of his description
under any of those agreements.

16. The provisions of paragraphs 7, 8 and 10 to 14 shall apply to a claim
under paragraph 15

(a)as if for any reference to the recognised terms and conditions there were
substituted a reference to the rate of remuneration referred to in
paragraph 15(c);

(b)as if references to the general level of terms and conditions were omitted;
and

(c)as if the reference in paragraph 12(a) to Part I were a reference to
Part II and so much of Part I as is thereby applied.

17. Where a temporary institution created under Article 15(3) of the No. 1
Order provides terms and conditions of employment for workers in any sector of
employment, a claim may be reported to [the Agency] under this paragraph that
as respects any worker in that sector an employer engaged in that sector is,
in respect of any matter, observing terms and conditions of employment less
favourable than the terms and conditions so provided.

18. The provisions of paragraphs 4 and 6 to 13 shall apply to a claim under
paragraph 17

(a)as if for any reference to the recognised terms and conditions there were
substituted a reference to the terms and conditions of employment provided for
the worker in question by the temporary institution created under Article
15(3) of the No. 1 Order;

(b)as if references to the general level of terms and conditions were omitted;

(c)as if the reference in paragraph 4 to the parties mentioned in
paragraph 2(a) were a reference to the parties represented on the said
temporary institution;

(d)as if the reference in paragraph 12(a) to Part I were a reference to
Part III and so much of Part I as is thereby applied.

Schedule 4Amendments

1.(1) Articles 9(4), 13, 14, 31 and the provisions of paragraph 5 of
Schedule 4 so far as they amend the No. 1 Order as respects the law relating
to unfair dismissal, shall apply to a dismissal where the effective date of
termination in relation to that dismissal falls on or after the coming into
operation of the relevant provision.

(2) Where the notice required to be given by an employer to terminate a
contract of employment by section 1(1) of the Act of 1965 (minimum period of
notice) would, if duly given when notice of termination was given by the
employer, or (where no notice was given) when the contract of employment was
terminated by the employer, expire on a date later than the effective date of
termination as defined by Article 21(4) of the No. 1 Order that later date
shall be treated as the effective date of termination for the purposes of
sub-paragraph (1) as it applies to Article 14 and the provisions of
paragraph 5 of Schedule 4 referred to in that sub-paragraph.

2. Any award made under Part I of the Terms and Conditions of Employment Act
(Northern Ireland) 1963 which is in force immediately before the coming into
operation of Schedule 3 shall continue to have effect after the coming into
operation of that Schedule, notwithstanding the repeal of that Part, as if it
had been made under that Schedule and may be superseded or varied accordingly.

3.(1) Any provision of paragraph 3 of Schedule 4 so far as it amends the Act
of 1965 as respects entitlement to or the computation of a redundancy payment
shall, subject to sub-paragraph (2), have effect in relation to dismissals and
to lay-off or short-time where the relevant date falls after the coming into
operation of the relevant provision.

(2) Where the notice required to be given by an employer to terminate a
contract of employment by section 1(1) of the Act of 1965 (minimum period of
notice) would, if duly given when notice of termination was given by the
employer, or (where no notice was given) when the contract of employment was
terminated by the employer expire on a date later than the relevant date as
defined by section 13(9) of the Act of 1965, that later date shall be treated
as the relevant date for the purposes of sub-paragraph (1).

4. The provisions of this Order which affect the computation of an employee's
period of continuous employment for the purposes of this Order or any other
statutory provision shall have effect in relation to any week or event,
whether falling or occurring (wholly or partly) before or after the coming
into operation of the relevant provision, where the computation falls to be
made after the coming into operation of that provision.

5. Nothing in this Schedule shall prejudice the operation of sections 28 and
29 (effect of repeal and substituting provisions) of the Interpretation Act
(Northern Ireland) 1954.

Schedule 6Repeals
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Northern Irish Legislation

INDUSTRIAL RELATIONS (NO.2) (NORTHERN IRELAND) ORDER 1976 - SECT 65
