Labour Court Database __________________________________________________________________________________ File Number: CD86858 Case Number: LCR10993 Section / Act: S67 Parties: BERGER PAINTS (I) LTD - and - SMAUI |
Conditions of employment in respect of 12 sales representatives.
Recommendation:
15. The Court, having considered the submissions made by the
parties, is of the view that the interests of both management and
workers would be protected by a provision in the procedures
governing dismissal to the effect that (i) an employee will have
the right to be accompanied by a shop steward at all stages of the
disciplinary procedure and (ii) in the event of an employee
lodging an appeal against a decision by management to take
disciplinary action, the employee, if he so wished, could be
accompanied by a shop steward and/or a trade union official. A
provision on similar lines might be inserted in the procedure
governing driving qualifications. The Court recommends that the
Conditions of Employment should provide accordingly.
The Court does not recommend concession of the Union's claim for
increased sick pay entitlements. In this connection, the Court
notes that the entitlements as set out in the proposed Conditions
of Employment can be extended at the discretion of management.
The Court also recommends that management should introduce an
Income Continuance Scheme as soon as possible following the
agreement of all the unions to the proposed Conditions of
Employment.
Division: Mr Fitzgerald Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD86858 THE LABOUR COURT LCR10993
CC861311 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. 10993
PARTIES: BERGER PAINTS IRELAND LIMITED
(Represented by the Federated Union of Employers)
and
SALES MARKETING AND ADMINISTRATIVE UNION OF IRELAND
Subject:
1. Conditions of employment in respect of 12 sales
representatives.
General background:
2. The matter of conditions of employment for the workers
concerned has been the subject of negotiations between the parties
for a number of years but final agreement has not yet been
reached. In the course of these negotiations the Union sought the
introduction of an income continuance scheme. The claim became
the subject of a Labour Court investigation and recommendation
(Recommendation No. 9509 refers). The Court recommended as
follows:-
"The Court notes the Company's statement at the hearing that
it is sympathetic to the claim for an income continuance
scheme and that the introduction of such a scheme throughout
the Company is high on its priority list. The Court
recommends that in the light of this statement the Union
should not pursue the claim in the context of the 24th
round".
Subsequently the Company agreed to introduce an income continuance
scheme subject to agreement with all four unions within the
Company on conditions of employment.
3. Agreement has now been reached between the Company and the
Union on all outstanding matters relating to conditions of
employment with the exception of the following:-
(a) inclusion of right of Union representation under
'discipline procedure' and 'driving disqualification' in
the proposed conditions of employment,
(b) revision of the sick leave and accident benefit scheme
contained in the proposed conditions of employment,
(c) Commitment that workers on long term illness will not be
removed from the payroll.
As no agreement could be reached on these items at local level
they were referred, on 5th August, 1986, to the conciliation
service of the Labour Court. A conciliation conference was held
on 18th September, 1986, at which no further agreement was reached
and the dispute was referred to the Labour Court on 6th November
for investigation and recommendation. The Court investigated the
dispute on 5th December, 1986.
Item (a) - Inclusion of right of Union representative under
'discipline procedure' and 'driving disqualification' in proposed
agreement on conditions of employment
Background:
4. Clause 8 of the proposed agreement in respect of 'discipline'
reads as follows:-
"In all cases of disciplinary action the following rules will
apply:-
Disciplinary action will only be taken after:
- Full investigation of all the facts
- The employee has had a fair chance to defend himself.
- The employee has had the right to appeal to higher
Management. Such an appeal to be heard within five days
of the appeal being lodged."
The Union is seeking to have the clause in question amended to
include the following;-
"The Union shall be notified of the decision and shall have
the right to make representations on behalf of the person
concerned before any suspension or dismissal is enacted".
This was rejected by the Company. In relation to 'driving
disqualification' contained in the proposed conditions of
employment agreement clause 2 reads as follows:-
"The Company will discuss the matter with the Representative
to see if alternative arrangements can be made to allow him
to satisfactorily carry out his duties. If this is not
possible, it may be necessary to dismiss him with due notice
or payment in lieu of notice in which case arrangements must
be made to return the car to the Company immediately".
The Union is seeking to have the words 'and Union' inserted after
'Representative'. This was also rejected by the Company.
Union's arguments:
5. (i) In the past a potential strike situation arose in the
Company following the failure of the Company to allow
a worker to be represented by the Union before the
decision to dismiss him in relation to a disciplinary
matter was implemented. The serving of strike notice
by the Union in that case resulted in the Company
placing the worker on deferred notice and agreeing to
meet the Union. This incident highlighted the need
for Union representation during the disciplinary
procedure process in order to ensure good industrial
relations in the Company.
(ii) The claim by the Union in this case for 'Union
representation' is simply to allow normal grievance
and disputes procedure to be followed. The intentions
of the "Discipline" section in the Company's proposed
conditions of employment is that management would
exclude the Union from involvement. At no stage does
it envisage any member being allowed to be represented
by his Union Official. It merely allows for the
presence of the shop steward where warnings are
issued. Under Clause 8, the proposals say that
disciplinary action will only be taken after "The
Employee has had a fair chance to defend himself".
The Union considers that it would be unfair, to
deprive an employee of his right to Union
representation.
(iii) The Union is not prepared to sign away its role to
that of a spectator and will not accept the agreement
unless the Company amends it accordingly.
(iv) In relation to driving disqualification the words
sought by the Union for insertion into the relative
clause are reasonable. However, the Company is not
prepared to accede to the Union's request as it sees
this in the same way as disciplinary action.
Company's argument:
6. Before the final dismissal stage is reached, the
proposed conditions of employment provide for a series
of steps in which the Union may, at the request of the
employee, be represented (details supplied to the
Court). This is adequate and in line with industrial
practice generally. The right of final dismissal,
following full investigation of the facts, must rest
with management and is not a subject for negotiation.
The provisions of the Unfair Dismissals Act, 1977, lay
down that the authority to dismiss lies solely with
the management of the company and that any such
decision would have to be defended on that basis.
Item (b) - Revision of sick leave and accident benefit scheme
contained in proposed conditions of employment
Background:
7. Clause 2 of the staff sickness and accident benefit scheme, as
contained in the proposed conditions of employment, provides the
following:-
"Benefit covers up to three months of certified absence in any
twelve consecutive months, and for those with more than 15
years' service or who are over the age of 50, this would be
extended by a further three months, making a total of six
months certified absence in any twelve consecutive months
covered by benefits. Benefits in excess of this must be
approved by the Managing Director".
The Union is seeking a revision of the scheme to provide for equal
benefit of 6 months for all staff. This was unacceptable to the
Company.
Union's arguments:
8. (i) At present only those with more than 15 years service,
or who are over the age of 50 (regardless of service),
qualify for the 6 months sickness benefit, which would
be the waiting period of the income/continuance
disability scheme. Therefore, someone for example
aged 49, with 14 years service, would receive only 3
months paid leave, while someone aged 50 with only 3
months service would receive 6 months paid leave.
This is clearly inequitable especially in the case of
long term illness or accident. Accordingly, the
Union's claim for the introduction of a formal scheme
providing for 6 months' sick leave benefit for all is
reasonable.
(ii) Since the employee is required to refund any Social
Welfare benefit receipts to the Company, concession of
the claim would be of minimal cost to the Company.
Company's arguments:
9. (a) Benefits in excess of those provided for in the sick
leave scheme are at the Company's discretion. The
Company considers this to be fair and reasonable.
(b) The benefits provided for in the Company's sick leave
scheme are in line with those normally obtaining in
companies who operate such schemes throughout industry
generally.
Item (c) - agreement that workers on long term illness will not be
removed from pay-roll
Background:
10. Under the terms of the proposed income continuance scheme in
the Company (which is non-contributory) benefits will commence
after a period of 26 weeks continuous incapacity and will continue
for the duration of the incapacity or until the member retires.
Benefits will be whichever is the greater of:-
(a) 50% of basic pay or
(b) 75% of basic pay minus the State disability benefit
for a single person
(details of the complete scheme supplied to the Court).
The Union has expressed concern that benefits could be cut-off
from a recipient should he be removed, for whatever reason, from
the Company pay-roll. Consequently the Union is seeking a
commitment from the Company that a worker absent on long term
illness would not be removed from the payroll.
Union's argument:
11. (i) The Company can claim that if a worker is off the
payroll then that worker is not covered by insurance
governing the income continuance scheme. Therefore
there must be agreement that regardless of the
circumstances a worker on long-term illness will not
be removed from the payroll.
(ii) At present the Company refuses to introduce the income
continuance scheme until the Union and all other
unions involved sign the proposed conditions of
employment. Should problems arise with the other
unions the scheme will be held up. In the meantime if
a worker is severely injured or ill he can be deprived
of cover. The Union is a constituent Union in its own
right and considers its members at risk. Therefore,
the Company should introduce the scheme immediately in
respect of the workers concerned.
Company's argument:
12. (a) The Company would never do anything whereby a worker
on long-term illness would lose benefit under the
scheme.
(b) The Company is only prepared to introduce the income
continuance plan when all four unions concerned have
agreed the proposed conditions of employment. This is
to ensure that all employees are treated equally.
Furthermore, were the Company to reach agreement
solely with the Union concerned in this case the cost,
from an insurance point of view of introducing a
income continuance plan for its members alone would be
much higher than introducing the scheme for the entire
staff.
RECOMMENDATION:
15. The Court, having considered the submissions made by the
parties, is of the view that the interests of both management and
workers would be protected by a provision in the procedures
governing dismissal to the effect that (i) an employee will have
the right to be accompanied by a shop steward at all stages of the
disciplinary procedure and (ii) in the event of an employee
lodging an appeal against a decision by management to take
disciplinary action, the employee, if he so wished, could be
accompanied by a shop steward and/or a trade union official. A
provision on similar lines might be inserted in the procedure
governing driving qualifications. The Court recommends that the
Conditions of Employment should provide accordingly.
The Court does not recommend concession of the Union's claim for
increased sick pay entitlements. In this connection, the Court
notes that the entitlements as set out in the proposed Conditions
of Employment can be extended at the discretion of management.
The Court also recommends that management should introduce an
Income Continuance Scheme as soon as possible following the
agreement of all the unions to the proposed Conditions of
Employment.
~
Signed on behalf of the Labour Court
5th February, 1987 Nicholas Fitzgerald
T.McC./P.W. Deputy Chirman