Labour Court Database __________________________________________________________________________________ File Number: CD8791 Case Number: LCR11158 Section / Act: S67 Parties: THERMO KING LTD - and - AEU |
Claim for the payment of annual bonus.
Recommendation:
7. Having carefully considered all the evidence submitted to it,
the Court does not recommend concession of the Union's claim.
Division: Mr Fitzgerald Mr Heffernan Mr O'Murchu
Text of Document__________________________________________________________________
CD8791 THE LABOUR COURT LCR11158
CC861999 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR11158
Parties: THERMO KING LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
AMALGAMATED ENGINEERING UNION
Subject:
1. Claim for the payment of annual bonus.
Background:
2. The Company manufactures overland transport refrigeration and
employs approximately 500 workers at its plant in Mervue, Galway.
Most of the hourly paid workers are represented by the Union.
3. Clause 15 of the Company/Union employment agreement provides
for the payment of an annual bonus of 1.75% subject to certain
conditions, the most relevant condition in this case being
paragraph (b) of that clause which reads as follows:
"an employee not to have participated in any unofficial
action during the previous 12 month period."
On 14th February, 1986, an employee of the Company was dismissed
arising from an incident which took place towards the end of 1985.
The dismissal was unacceptable to the Union on the basis that the
incident did not take place in the course of employment and that
therefore, it did not fall to be dealt with under the
Company/Union disciplinary procedure. The Company refused to
alter its decision and the workers voted to strike with effect
from midnight on Friday 14th February, 1986. The workers' action
was endorsed by the Union's District Committee and by its
Executive Committee. Pickets were placed on the Company's
premises on Monday 17th February, 1986, but a High Court
injunction to restrain the picketing was obtained by the Company
and served later that day. Work resumed the following day and the
matter is currently before the High Court.
4. The Company refused to pay the annual bonus in December, 1986
to those workers who participated in the strike action on 17th
February, 1986, on the basis that it considered this action to be
unofficial and therefore, was in breach of clause 15(b) of the
Agreement. The Union contends that the industrial action taken on
the date in question was official and therefore sought payment of
the annual bonus to the workers to whom it was denied. The
Company maintained its position and as no agreement could be
reached at local level the matter was referred, on 8th December,
1986, to the conciliation service of the Labour Court. A
conciliation conference held on 27th January, 1987, failed to
resolve the dispute and the matter was referred to the Labour
Court for investigation and recommendation. Due to the
unavailability of the parties the Court was unable to investigate
the dispute until 8th April, 1987, in Galway.
Unions' arguments:
5. (i) The Union must at all times have the right to decide
whether or not industrial action taken by its members
is official or unofficial. The industrial action taken
by the workers on 17th February, 1986, was official
under the rules of the Union.
(ii) Given that the industrial action in question was
official and therefore clause 15 of the Company/Union
Agreement has not been breached by the workers
involved, no valid reason exists why the Company should
not now pay the annual bonus to these workers.
Company's arguments:
6. (a) Clause 15(b) of the Agreement must be interpreted in
the context of the various other provisions of the
agreement, particularly those provisions relating to
procedures. The industrial action of 17th February,
1986, was taken before the procedures laid down in the
Agreement were gone through. Therefore, as no official
action can be sanctioned until the procedures are
adhered to and proper notice given, it follows that the
strike on the date in question must be termed
unofficial.
(b) The Union contends that it has the sole right to
declare a dispute official or unofficial regardless of
whether the Agreement was adhered to or breached. On
this basis industrial action could be declared official
months after it occurs and entitle workers to payment
of bonus. If this view is correct it renders the
Agreement irrelevant in relation to the payment of the
annual bonus and the Union is asking that clause 15(b)
be read in isolation from the Agreement of which it
forms part. Such an approach is unacceptable to the
Company.
(c) The Company would question whether the action in
question was or could be made official. In this
regard, the Company was informed on 14th February that
the action would be made official. Therefore, the
action which took place on that date was unofficial.
On Monday 17th February, the High Court issued an
injunction which was served on the Union that afternoon
which restrained the Union from "instructing,
exhorting, engaging or supporting in any manner
whatsoever" any form of industrial action and in
particular, a strike. Thus, any subsequent decision of
the Union to make the action official is in breach of
the injunction and is consequently invalid.
(d) In all the circumstances, the industrial action taken
by the workers involved must be considered to have been
unofficial action and therefore in accordance with the
terms of the Company/Union Agreement they are not
entitled to payment of the annual bonus.
RECOMMENDATION:
7. Having carefully considered all the evidence submitted to it,
the Court does not recommend concession of the Union's claim.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald.
_________________________
Deputy Chairman
13th May, 1987
T.McC./J.C.