Labour Court Database __________________________________________________________________________________ File Number: CD87160 Case Number: AD8752 Section / Act: S13(9) Parties: PEERLESS RUG. LTD - and - ITGWU |
Appeal, by the Company, against Rights Commissioner Recommendation No. RP 145/86 concerning the treatment of payments following a dispute as a loan.
Recommendation:
10. The Court, having considered the submissions made by the
parties, endorses the view expressed by the Rights Commissioner in
the penultimate paragraph of his Recommendation in regard to the
Company being in technical breach of the Agreement. However the
Court is also of the view that the employees too were in technical
breach by putting the Company under threat of industrial action
without exhausting the procedures laid down.
The Court decides accordingly that the Rights Commissioner's
recommendation should be amended to provide that half the payments
in question be repayable by the employees.
The Court is impressed by the advances made by the parties since
the introduction of the existing agreement. Accordingly the Court
hopes that the parties put the present incident behind them and
recapture the full spirit and application of the agreement.
Division: Mr Fitzgerald Mr Heffernan Mr Walsh
Text of Document__________________________________________________________________
CD87160 THE LABOUR COURT AD5287
Section 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 52 OF 1987
PARTIES: PEERLESS RUG EUROPE LIMITED
(Represented by the Federated Union of Employers)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal, by the Company, against Rights Commissioner
Recommendation No. RP 145/86 concerning the treatment of payments
following a dispute as a loan.
Background:
2. During the course of the 26th Wage Round negotiations, the
Company, on 2nd October, 1986, was informed by the Chairman of the
Company's Section Committee that the employees had made a decision
to take unofficial industrial action from starting time on 6th
October, 1986. The management regarded this as a breach of the
Company/Union Agreement and on 3rd October notified its employees
that as a result of the proposed action the factory would be
closed from Monday, 6th October, 1986, until such time as the
Agreement was restored. The employees continued to work normally
up to and including 4th October, 1986. The Company closed the
factory on 6th and 7th October, 1986.
3. Talks took place between the parties on 6th and 7th October,
1986. The Company maintains that on 7th October, 1986, the
following verbal agreement was reached between the parties:-
"(1) Work would be available if the employees wished to work
within the Agreement, as per Notice of 3rd October.
(2) The Company would finance the nett loss in basic
earnings during the two days disruption of production by
way of a loan.
(3) The financing of the nett loss in earnings would be the
subject of a separate dispute to be negotiated inside
the Agreement.
(4) The 1986 pay negotiations would continue inside the
Agreement".
4. The Company, on 16th October, 1986, gave each of the employees
concerned two cheques, one for the week's wages and the other the
nett pay which the employee concerned had lost during the previous
week's stoppage. A letter enclosed with the cheques stated that
the second cheque:-
"is held in dispute between the Union and the Company,
which dispute will be resolved under the Union
Agreement. There must be no misunderstanding, this is a
loan made without prejudice and will remain so and must
be repaid by deduction from future wages unless there is
a resolution to the contrary. Cashing of this cheque
will be taken as acceptance on your part of the above
conditions".
5. The Union asserts that on 7th October, 1986, the parties
agreed the following:-
"1) Payment for 6th and 7th October would be made.
2) We made it clear to the Company that it would not be
acceptable as a loan. This was agreed.
3) If the company wished to refer the matter to a third
party we would agree to this".
6. As the parties could find no grounds for settlement the matter
was referred to a Rights Commissioner for investigation and
recommendation. On 9th February, 1987, the Rights Commissioner
issued the following findings and recommendation:-
"I am of the view that the threat of unofficial action
conveyed to the Company by the Section Chairman was
motivated by the negotiations on the 26th Round
increases and that such threat was not good industrial
relations.
Whilst I accept that the Company had to seriously
consider such threat I am of the view that the Company
were in technical breach of the Company/Union Agreement
when it locked-out its employees in as much as the
employees had taken no industrial action officially or
unofficially.
I recommend that the Company's claim to have the
payments made in respect of 6th and 7th October 1986
treated as loans is dismissed".
7. On 27th February, 1987, the Company appealed the
recommendation to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. A Court hearing took place on 2nd
June, 1987, in Newbridge.
Company's arguments;
8. (a) The Company cannot operate unless there are stable and
orderly industrial relations. To this end a
Company/Union Agreement was achieved. The employees
decision to take industrial action was in breach of
this Agreement. The employees were advised of the
consequences of their action and withdrawal of notice
was requested by the Company. The Union committee was
also advised that the Company would continue
discussions as soon as notice was withdrawn. For the
Company to have done otherwise would have been to
undermine the Agreement.
(b) The Union's argument that the Company should have
waited till the industrial action was effected before
closing ignores the practicalities of the situation.
The decision by the employees to take industrial
action was formally communicated to the Company. The
Company informed the Union committee that negotiations
could only take place when the notice of unofficial
action was withdrawn. The Union committee refused to
do this. In preparation for production the Company
must have an employee in early to start the boilers.
If the Company had waited until the employees
commenced their unofficial action the Company would
then have had to close down and possibly pay wages
till the end of the shift. This option was completely
impractical.
(c) The critical importance of the Agreement and adherence
to it is clear to all parties from the Company's
performance before and after its signing. The action
of the employees in October threatened to undermine
this Agreement with extremely serious consequences for
all involved.
Union's arguments:
9. (i) On several occasions on 3rd October, 1986, the Section
Committee requested further talks with the Company.
The requests were not taken up by the Company who
instead proceeded to close the plant and effectively
locked-out the employees.
(ii) At no time did the employees take any form of
industrial action. The employees worked overtime on
4th October, 1986. At no stage did the Union give
formal notice of intent to the Company. The position
is that the Company took the action in breach of the
Agreement.
(iii) The Union and the Company agreed that the payment for
the two days loss suffered because of the lock-out
would not be a loan.
DECISION:
10. The Court, having considered the submissions made by the
parties, endorses the view expressed by the Rights Commissioner in
the penultimate paragraph of his Recommendation in regard to the
Company being in technical breach of the Agreement. However the
Court is also of the view that the employees too were in technical
breach by putting the Company under threat of industrial action
without exhausting the procedures laid down.
The Court decides accordingly that the Rights Commissioner's
recommendation should be amended to provide that half the payments
in question be repayable by the employees.
The Court is impressed by the advances made by the parties since
the introduction of the existing agreement. Accordingly the Court
hopes that the parties put the present incident behind them and
recapture the full spirit and application of the agreement.
~
Signed on behalf of the Labour Court
19th June, 1987 Nicholas Fitzgerald
B.O'N./P.W. Deputy Chairman
From: WOLFE 19-JUN-1987 15:10