2.—(1) Notwithstanding anything contained in the Industrial Relations Acts, 1946 to 1990, at the request of a trade union F5[…], the Court may F6[, subject to this Act,] investigate a trade dispute where the Court is satisfied that—

F7[(a) it is not the practice of the employer to engage in collective bargaining F5[…] in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute,

(b) either—

(i) the employer has failed to observe—

(I) a provision of the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 specifying the period of time for the doing of any thing (or such a provision of any code of practice amending or replacing that code), or

(II) any agreement by the parties extending that period of time,

or

(ii) the dispute having been referred to the Commission for resolution in accordance with the provisions of such code, no further efforts on the part of the Commission will, in the opinion of the Commission, advance the resolution of the dispute and the Court has received a report from the Commission to that effect,]

(c) the trade union F5[…] or the employees, as the case may be, have not acted in a manner which, in the opinion of the Court, has frustrated the employer in observing a provision of such code of practice, and

(d) the trade union F5[…] or the employees, as the case may be, have not had recourse to industrial action after the dispute in question was referred to the Commission in accordance with the provisions of such code of practice.

(2) In the course of an investigation under subsection (1) the Court shall have regard to the entirety of labour relations practices in the employment concerned including labour relations practices engaged in by the employer or an associated employer in another employment including an employment outside the State.

F8[(3) The Court shall decline to conduct an investigation of a trade dispute under subsection (1) where it is satisfied that the number of workers who are party to the trade dispute concerned is such as to be insignificant having regard to the total number of workers employed by the employer concerned in the grade, group or category to which the trade dispute concerned refers.

(4) Where the Court has determined, for the purpose of subsection (3), that the number of workers who are party to the trade dispute concerned is such as not to be insignificant having regard to the total number of workers employed by the employer concerned in the grade, group or category to which the trade dispute concerned refers, the Court shall determine whether the number of the workers who are party to the trade dispute is such as to be insignificant having regard to the total number of workers in the larger related group referred to in subsection (5)(c).

(5) For the purposes of subsection (4) —

(a) the Court shall consider whether the grade, group or category of worker to which the trade dispute refers is related to another grade, group or category of worker employed by the employer concerned,

(b) where the Court is satisfied that the grade, group or category of worker to which the trade dispute refers is related to another grade, group or category of worker also employed by the employer concerned, the Court shall determine the total number of workers employed by the employer concerned in both—

(i) the grade, group or category to which the trade dispute concerned refers, and

(ii) such related grade, group or category of worker,

and

(c) the Court shall, having regard to the total number of workers established pursuant to paragraph (b) (in this section referred to as the ‘larger related group’), determine, for the purposes of the determination under subsection (4), whether the number of workers who are party to the trade dispute is such as to be insignificant having regard to such total number of workers in the larger related group.

(6) Where, pursuant to subsection (4), the Court determines that the number of workers who are party to the trade dispute concerned is such as to be insignificant having regard to the total number of workers in the larger related group referred to in that subsection, the Court shall decline to conduct an investigation of the trade dispute concerned under subsection (1) unless it is satisfied that exceptional and compelling circumstances exist which justify the conducting of an investigation of the trade dispute concerned.

(7) Subject to subsections (8) and (9), the Court shall not consider a request referred to in subsection (1) in respect of a grade, group or category of worker to which the trade dispute concerned applies, where the Court has made a recommendation under section 5, or a determination under section 6, in respect of the same grade, group or category of worker and the same employer in the 18 months preceding the making of that request.

(8) Where—

(a) the Court made a recommendation under section 5 pursuant to a request under subsection (1),

(b) the recommendation referred to in paragraph (a) was implemented by the employer following its making, and

(c) at any time during a period of 18 months from the day on which the recommendation referred to in paragraph (a) was made, another request is made under subsection (1) by the same grade, group or category of worker,

notwithstanding subsection (7), the Court may investigate the trade dispute concerned if it is satisfied that following the implementation of such recommendation—

(i) the employer concerned has resiled from that implemented recommendation referred to in paragraph (b), or

(ii) there have been material and adverse changes to the totality of remuneration and conditions of employment of the grade, group or category of worker referred to in paragraph (c).

(9) Where—

(a) the Court made a determination under section 6 pursuant to a request under subsection (1),

(b) the determination referred to in paragraph (a) was complied with by the employer following its making,

(c) at any time during a period of 18 months from the day on which the determination referred to in paragraph (a) was made, another request is made under subsection (1) by the same grade, group or category of worker, and

(d) no application was made under section 10 in respect of such determination,

notwithstanding subsection (7), the Court may investigate the trade dispute concerned if it is satisfied that following compliance with such determination—

(i) the employer concerned has resiled from the determination referred to in paragraph (b), or

(ii) there have been material and adverse changes to the totality of remuneration and conditions of employment of the grade, group or category of worker referred to in paragraph (c).

(10) For the purposes of subsection (1) (a), where an employer asserts that it is the practice of the employer to engage in collective bargaining with an excepted body to which this Act applies, when determining if the excepted body concerned is an excepted body to which this Act applies in respect of the grade, group or category of worker concerned, the Court shall have regard to the establishment, functioning and administration of that excepted body and shall, for such purposes, take into account—

(a) the manner of the election of employees to the excepted body concerned,

(b) the frequency of elections of employees referred to in paragraph (a),

(c) any financing or resourcing of the excepted body concerned that exceeds minimum logistical support provided to it by or on behalf of the employer, and

(d) the length of time the excepted body concerned has been in existence and any prior collective bargaining between the employer and that excepted body.

(11) Where an employer asserts to the Court that it is the practice of the employer to engage in collective bargaining with an excepted body to which this Act applies in respect of the grade, group or category of worker concerned, the employer shall satisfy the Court that it is the practice of that employer to engage in collective bargaining with the excepted body concerned in respect of the grade, group or category of worker concerned.]