Louth v Minister for Social Welfare

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 2222
• Docket Number: No. 2718p/1990,[1990 No. 2719P]
• Court: High Court
• Date: 01 January 1993

1992 WJSC-HC 2222

THE HIGH COURT

No. 2718p/1990

LOUTH v. MIN, SOCIAL WELFARE

BETWEEN

JAMES LOUTH & ORS

PLAINTIFFS

.v.

MINISTER FOR SOCIAL WELFARE

DEFENDANT

Citations:

SOCIAL WELFARE ACTS

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S114

CONSTRUCTION INDUSTRY TRAINING BOARD V LABOUR FORCE LTD 1970 3 AER 220

MIN FOR LABOUR V PMPA INSURANCE CO LTD (UNDER ADMINISTRATION) UNREP BARRON 16.4.86 1986/4/1253

Synopsis:

EMPLOYMENT

Class

Contract of service - Port - Stevedores - Dockers - Engagement - Dockers working on rota system - Whether docker unemployed - (1990/2718 P - Barron J. - 9/4/92) - [1993] 1 I.R.339 1992 ILRM 586

|Louth v. Minister for Social Welfare|

SHIPPING

Cargo

Stevedores - Dockers - Engagement - Rota system - Whether docker unemployed - (1990/2718 P - Barron J. - 9/4/92) - [1993] 1 I.R.339

|Louth v. Minister for Social Welfare|

SOCIAL SERVICES

Welfare

Benefit - Unemployment - Dockers - Entitlement - Register of unemployed workers - Whether dockers entitled to register - Dockers engaged in work in rotation - (1990/2718 P - Barron J. - 9/4/92) - [1993] 1 I.R. 339 - [1992] ILRM 586 - [1992] ITR 291

|Louth v. Minister for Social Welfare|

WORDS AND PHRASES

"Contract of service"

Shipping - Port - Stevedores - Dockers - Engagement - Dockers working on rota system - Whether docker unemployed - (1990/2718 P - Barron J. - 9/4/92) - [1993 1 I.R. 339 - [1992] ILRM 586

|Louth v. Minister for Social Welfare|

1 Judgment of Mr. Justice Barrondelivered the 9th day of April 1992.

2 The Plaintiffs are all dockers who work as such in the port of Drogheda. They are all members of the A.T.G.W.U. As such members they have formed an unincorporated association known as the Drogheda DeepseaDockers" Association which inter alia administers an arrangement whereby each of its members pools his earnings so that each is remunerated equally.

3 The manner in which the deepsea work at the port is organized is as follows. There are 27 dockers in all, who are the Plaintiffs in the present action. When ships enter the port to be unloaded, the stevedore concerned contacts the first named Plaintiff. The latter then contacts the dockers who will be required. The number is a matter for him. He chooses each docker in rotation. This practice of choosing dockers in rotation has existed at the port for at least 40 years. So far as each individual docker is concerned, that system contained an element of chance as to how much work he would obtain and accordingly as to how much he would earn. For example, one docker might whenever his turn came be employed on relatively short jobs while others might get longer jobs. To avoid this situation, the dockers agreed to pool their earnings. If a man is not chosen to work on the docks on any particular day he is free to work elsewhere. He is however expected to be available in case a ship arrives unexpectedly at the port.

4 Once the first named Plaintiff has been informed that a ship requires to be unloaded, the stevedore ceases to be concerned with the composition of the labour force required. If he wishes any part of the cargo to be unloaded in any particular order, he indicates this to the first named Plaintiff. When the unloading is completed payment is made upon the basis of an agreed rate per ton of cargo, the actual rate depending on the nature of the cargo.

5 Upon payment, the stevedore adds the employer's proportion of P.R.S.I. to the amount owing. This total is then lodged to a bank account on behalf of the Plaintiffs and after deductions for employee's P.R.S.I. is then creditedequally between the Plaintiffs. Payment out is then made to each Plaintiff of his share after deduction of Income Tax. This system of tax collection has the approval of the Revenue Commissioners.

6 In the past, as was always the practice, dockers who were not working at the docks in pursuance of this rota scheme signed on at the local Social Welfare Office as an unemployed person. In February 1988, the Department refused to permit them to do so on the ground that by virtue of the arrangement to which I have referred they were continuouslyemployed.

7 These proceedings are brought to establish for the Plaintiffs a right to sign on as being unemployed within the meaning of the Social Welfare Code on those days when they are not occupied in unloading ships. The issue has already been decided by a Deciding Officer and by an Appeals Officer, on appeal. Although the Pleadings are by no means clear as to the basis upon which these proceedings are brought, it has been accepted by both parties that the matter should be treated as an appeal from the decision of the Appeals Officer upon a point of law.

8 The Deciding Officer gave his decision on the 11th February 1988. He held that the Plaintiffs had a contract of employment with the Drogheda Deepsea Dockers" Association and that so long as that contract continued in force the Plaintiffs were fully employed with the Association and could not be considered as being unemployed within the meaning of the Social Welfare Acts for Unemployment Benefitpurposes.

9 The appeal to the Appeals Officer was heard on the 12th May 1988 and his decision was given on 24th June 1988.The evidence before the Appeals Officer as to the work pattern at the docks was essentially as I have described it.

10 The issue before the Appeals Officer was whether or not the men...