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INDUSTRIAL RELATIONS (NORTHERN IRELAND) ORDER 1976 - SECT 82

82.Para.(1), with Schedule 5, effects amendments

(2) The transitional provisions in Schedule 6 shall have effect.

Para.(3), with Schedule 7, effects repeals

1. The Agency shall be a body corporate to which section 19 of the
Interpretation Act (Northern Ireland) 1954 shall apply.

2. The Agency shall consist of the following persons appointed by the Head of
the Department, namely

(a)a chairman; and

(b)9 other members of whom

(i)3 shall be appointed after consultation with such organisations or
associations of organisations representative of employers as appear to the
Head of the Department to be appropriate;

(ii)3 shall be appointed after consultation with such organisations or
associations of organisations representative of employees as appear to the
Head of the Department to be appropriate; and

<(iii)3 shall be appointed as appears to the Head of the Department to be appropriate.


3.(1) A member of the Agency shall hold and vacate his office in accordance
with the terms of his appointment and shall, on ceasing to hold his office, be
eligible for re-appointment.

(2) Any member may at any time by notice in writing to the Head of the
Department resign his office.

4. The Head of the Department may, by notice in writing addressed to a member,
terminate his appointment as a member of the Agency if of the opinion that he
is unfit to continue in office or incapable of performing his duties as a
member.

5. The proceedings of the Agency shall not be invalidated by any vacancy in
the membership of the Agency or by any defect in the appointment of any of its
members.

6. The Agency shall not be regarded as the servant or agent of the Crown or as
enjoying any status, immunity or privilege of the Crown or as exempt from any
tax, duty, rate, levy, or other charge whatsoever, whether general or local,
and its property shall not be regarded as the property of, or property held on
behalf of, the Crown.

[7. The Agency may pay, or make such payments towards the provision of, such
remuneration, allowances (including allowances for expenses), pensions or
gratuities to or in respect of the chairman and other members of the Agency,
or any of them, as the Department, with the approval of the Department of the
Civil Service may determine.]

Para.8 amends Schedule 1 to 1975 c.25

9.(1) The Agency may appoint a panel of persons, who are not members of the
Agency, from whom it may from time to time select persons to assist it in the
discharge of its functions.

(2) The number of persons which the Agency may appoint under this paragraph
shall be determined by the Agency with the approval of the Department and the
Department of Finance.

(3) The Agency may pay to persons appointed under this paragraph such fees and
such allowances for expenses as the Agency with the approval of the Department
and the Department of Finance may determine.

10. The fixing of the common seal of the Agency shall be authenticated by the
signature of the chairman of the Agency or some other member thereof
authorised either generally or specially by the Agency to act for that
purpose.

11. Any contract or instrument which, if entered into or executed by an
individual would not require to be under seal may be entered into or executed
on behalf of the Agency by any person generally or specially authorised by the
Agency to act for that purpose and any document purporting to be such a
contract or instrument shall be deemed to be such a contract or instrument
until the contrary is proved.

12. The number of persons employed by the Agency and the terms and conditions
of employment of such persons shall be determined by the Agency with the
approval of the Department and the Department of Finance.

13. The Agency may, in the case of such persons employed by it as may be
determined by the Agency with the approval of the Department and the
Department of Finance, pay to or in respect of them such pensions or
gratuities, or provide and maintain for them such pension schemes (whether
contributory or not) or contributory or other pension arrangements as may be
so determined.

1. For the purposes of this Schedule the cases where there are normal working
hours include cases where the employee is entitled to overtime pay when
employed for more than a fixed number of hours in a week or other period, and,
subject to paragraph 2, in those cases that fixed number of hours shall be the
normal working hours.

2. If in such a case

(a)the contract of employment fixes the number, or the minimum number, of
hours of employment in the said week or other period (whether or not it also
provides for the reduction of that number or minimum in certain
circumstances), and

(b)that number or minimum number of hours exceeds the number of hours without
overtime,

3.(1) This paragraph and paragraph 4 shall apply if there are normal working
hours for an employee when employed under the contract of employment in force
on the calculation date.

(2) Subject to paragraph 4, if an employee's remuneration for employment in
normal working hours, whether by the hour or week or other period, does not
vary with the amount of work done in the period, the amount of a week's pay
shall be the amount which is payable by the employer under the contract of
employment in force on the calculation date if the employee works throughout
his normal working hours in a week.

(3) Subject to paragraph 4, if sub-paragraph (2) does not apply the amount of
a week's pay shall be the amount of remuneration for the number of normal
working hours in a week calculated at the average hourly rate of remuneration
payable by the employer to the employee in respect of the period of 12 weeks

(a)where the calculation date is the last day of a week, ending with that
week;

(b)in any other case, ending with the last complete week before the
calculation date.

(4) References in this paragraph to remuneration varying with the amount of
work done include references to remuneration which may include any commission
or similar payment which varies in amount.

4.(1) This paragraph shall apply if there are normal working hours for an
employee when employed under the contract of employment in force on the
calculation date, and he is required under that contract to work during those
hours on days of the week or at times of the day which differ from week to
week or over a longer period so that the remuneration payable for, or
apportionable to, any week varies according to the incidence of the said days
or times.

(2) The amount of a week's pay shall be the amount of remuneration for the
average weekly number of normal working hours (calculated in accordance with
sub-paragraph (3)) at the average hourly rate of remuneration (calculated in
accordance with sub-paragraph (4)).

(3) The average number of weekly hours shall be calculated by dividing by 12
the total number of the employee's normal working hours during the period of
12 weeks

(a)where the calculation date is the last day of a week, ending with that
week;

(b)in any other case, ending with the last complete week before the
calculation date.

(4) The average hourly rate of remuneration shall be the average hourly rate
of remuneration payable by the employer to the employee in respect of the
period of 12 weeks

(a)where the calculation date is the last day of a week, ending with that
week;

(b)in any other case, ending with the last complete week before the
calculation date.

5.(1) For the purpose of paragraphs 3 and 4, in arriving at the average hourly
rate of remuneration only the hours when the employee was working, and only
the remuneration payable for, or apportionable to, those hours of work, shall
be brought in; and if for any of the 12 weeks mentioned in either of those
paragraphs no such remuneration was payable by the employer to the employee,
account shall be taken of remuneration in earlier weeks so as to bring the
number of weeks of which account is taken up to 12.

(2) Where, in arriving at the said hourly rate of remuneration, account has to
be taken of remuneration payable for, or apportionable to, work done in hours
other than normal working hours, and the amount of that remuneration was
greater than it would have been if the work had been done in normal working
hours, account shall be taken of that remuneration as if

(a)the work had been done in normal working hours; and

(b)the amount of that remuneration had been reduced accordingly.

(3) For the purpose of the application of sub-paragraph (2) to a case falling
within paragraph 2, sub-paragraph (2) shall be construed as if for the words
"had been done in normal working hours", in each place where those words
occur, there were substituted the words "had been done in normal working hours
falling within the number of hours without overtime".

6.(1) This paragraph shall apply if there are no normal working hours for an
employee when employed under the contract of employment in force on the
calculation date.

(2) The amount of a week's pay shall be the amount of the employee's average
weekly remuneration in the period of 12 weeks

(a)where the calculation date is the last day of a week, ending with that
week;

(b)in any other case, ending with the last complete week before the
calculation date.

(3) In arriving at the said average weekly rate of remuneration no account
shall be taken of a week in which no remuneration was payable by the employer
to the employee and remuneration in earlier weeks shall be brought in so as to
bring the number of weeks of which account is taken up to 12.

7. In any case in which an employee has not been employed for a sufficient
period to enable a calculation to be made under any of the foregoing
provisions of this Part the amount of a week's pay shall be an amount which
fairly represents a week's pay; and in determining that amount the tribunal
shall apply as nearly as may be such of the foregoing provisions of this Part
as it considers appropriate, and may have regard to such of the following
considerations as it thinks fit, that is to say

(a)any remuneration received by the employee in respect of the employment in
question;

(b)the amount offered to the employee as remuneration in respect of the
employment in question;

(c)the remuneration received by other persons engaged in relevant comparable
employment with the same employer;

(d)the remuneration received by other persons engaged in relevant comparable
employment with other employers.

8. In arriving at an average hourly rate or average weekly rate of
remuneration under this Part

(a)account shall be taken of work for a former employer within the period for
which the average is to be taken if, by virtue of Schedule 1 to the Act of
1965 (computation of period of employment) a period of employment with the
former employer counts as part of the employee's continuous period of
employment with the later employer, and

(b)"week" means, for an employee whose remuneration is calculated weekly by a
week ending with a day other than Saturday, a week ending with that other day,
and, for other employees, means a week ending with Saturday.

9. Where under this Part account is to be taken of remuneration or other
payments for a period which does not coincide with the periods for which the
remuneration or other payments are calculated, the remuneration or other
payments shall be apportioned in such manner as may be just.

10. The Department may by regulations provide that in prescribed cases the
amount of a week's pay shall be calculated in such manner as the regulations
may prescribe.

Schedule 3 sets out Schedule 2 to 1965 c.19 (NI) as substituted by art.69(2)

1. In this Schedule "the relevant provisions" means the provisions of this
Order (including this Schedule) [and the No. 2 Order] conferring rights on
employees, or connected therewith.

2. Where an employee or employer has died tribunal proceedings arising under
any of the relevant provisions may be instituted or continued by a personal
representative of the deceased employee or, as the case may be, defended by a
personal representative of the deceased employer.

3.(1) If there is no personal representative of a deceased employee, tribunal
proceedings arising under any of the relevant provisions (or proceedings to
enforce a tribunal award made in any such proceedings) may be instituted or
continued on behalf of the estate of the deceased employee by such other
person as the industrial tribunal may appoint being either

(a)a person authorised by the employee to act in connection with the
proceedings before the employee's death; or

(b)the widower, widow, child, father, mother, brother or sister of the
deceased employee,

(2) In such a case any award made by the industrial tribunal shall be in such
terms and shall be enforceable in such manner as may be provided by
regulations made by the Department.

4.(1) Subject to any specific provision of this Schedule to the contrary, in
relation to an employee or employer who has died

(a)any reference in the relevant provisions to the doing of anything by or in
relation to an employee or employer shall be construed as including a
reference to the doing of that thing by or in relation to any personal
representative of the deceased employee or employer; and

(b)any reference in the said provisions to a thing required or authorised to
be done by or in relation to an employee or employer shall be construed as
including a reference to any thing which, in accordance with any such
provision as modified by this Schedule (including head (a)), is required or
authorised to be done by or in relation to any personal representative of the
deceased employee or employer.

(2) Nothing in this paragraph shall prevent references in the relevant
provisions to a successor of an employer from including a personal
representative of a deceased employer.

5. Any right arising under any of the relevant provisions as modified by this
Schedule shall, if it had not accrued before the death of the employee in
question, nevertheless devolve as if it had so accrued.

6. Where by virtue of any of the relevant provisions as modified by this
Schedule a personal representative of a deceased employer is liable to pay any
amount and that liability had not accrued before the death of the employer, it
shall be treated for all purposes as if it were a liability of the deceased
employer which had accrued immediately before the death.

7. Where an industrial tribunal makes a protective award under Article 51 and
an employee of a description to which the award relates dies during the
protected period, the award shall be treated in his case as if it specified a
protected period of such length as to end on the date of his death.

8. In this Part of this Schedule "the unfair dismissal provisions" means so
much of this Order (including this Schedule) as relates to unfair dismissal.

9. Where an employer has given notice to an employee to terminate his contract
of employment and before that termination the employee or the employer dies,
the unfair dismissal provisions shall apply as if the contract had been duly
terminated by the employer by notice expiring on the date of the death.

10. Where the employee's contract of employment has been terminated by the
employer and by virtue of Article 21(5) a date later than the effective date
of termination as defined by Article 21(4) is to be treated as the effective
date of termination for the purposes of certain of the unfair dismissal
provisions, and before that later date the employee or the employer dies,
Article 21(5) shall have effect as if the notice referred to in that paragraph
as required to be given by the employer would have expired on the death.

11. Where an employee has died, then, unless an order for reinstatement or
re-engagement has already been made, the unfair dismissal provisions relating
to reinstatement and re-engagement shall not apply; and accordingly if the
industrial tribunal finds that the grounds of the complaint are well-founded
the case shall be treated as falling within Article 32(5) as a case in which
no order is made under Article 31.

12. If an order for reinstatement or re-engagement has been made and the
employee dies before the order is complied with

(a)if the employer has before the death refused to reinstate or re-engage the
employee in accordance with the order, Article 32(2) and (3) shall apply and
an award shall be made under Article 32(2)(b) unless the employer satisfies
the tribunal that it was not practicable at the time of the refusal to comply
with the order;

(b)if there has been no such refusal, Article 32(1) shall apply if the
employer fails to comply with any ancillary terms of the order which remain
capable of fulfilment after the employee's death as it would apply to such a
failure to comply fully with the terms of an order where the employee had been
reinstated or re-engaged.

Schedule 5Amendments

1.(1) The provisions of this Order relating to unfair dismissal shall apply to
dismissals where the effective date of termination falls on or after the date
on which Article 20 comes into operation.

(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, that later date shall be treated as the effective date of
termination for the purposes of sub-paragraph (1).

2. The provisions of Articles 42 and 43 shall apply in relation to an employer
who becomes insolvent (within the meaning of those Articles) after the coming
into operation of those Articles, and shall in such a case apply to any debts
mentioned in Article 42 and to any unpaid relevant contributions (within the
meaning of Article 43), whether falling due before or after the coming into
operation of those Articles.

3. Where any provision of this Order increases the penalty for an offence
under any other statutory provision, that increase shall not have effect in
relation to an offence committed before the coming into operation of the
relevant provision.

4.(1) Any provision of Part II of Schedule 5 so far as it amends the Act of
1965 as respects entitlement to or the computation of a redundancy payment or
the reference of questions to industrial tribunals concerning such entitlement
or computation, 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 said Act of 1965, that later date shall be
treated as the relevant date for the purposes of sub-paragraph (1).

5. 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.

6.(1) The amendments made by Part II of Schedule 5 shall not affect the
validity of any statement given to an employee under Part I of the Act of 1965
before the coming into operation of that Part, but (except as provided by
sub-paragraph (2)) the coming into operation of those amendments shall be
deemed to be such a change as is mentioned in section 4(4) of the Act of 1965.

(2) On the coming into operation of paragraph 7 of Part II of Schedule 5 an
employee shall not be treated as ceasing to come within the exception in
subsection (8) of section 4 of the Act of 1965 by reason only that the
condition specified in paragraph (c) of subsection (8) is not fulfilled; but
he shall be treated as ceasing to come within that exception unless that
condition is fulfilled not more than one month after the coming into operation
of the said paragraph 7.

Schedule 7Repeals

© 1976 Crown Copyright

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