Labour Court Database __________________________________________________________________________________ File Number: CD/88/405 Case Number: LCR12005 Section / Act: S67 Parties: CONTRACT CLEANING INDUSTRY - and - FEDERATED WORKERS' UNION OF IRELAND;IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Conditions of Employment.
Recommendation:
Due to technical reasons this Recommendation is only available
when the full document is displayed in the Database.
Division: CHAIRMAN Mr Collins Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD88405 RECOMMENDATION NO. LCR12005
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: CONTRACT CLEANING INDUSTRY
(Represented by the Federated Union of Employers)
and
FEDERATED WORKERS' UNION OF IRELAND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Conditions of Employment.
GENERAL BACKGROUND:
2. A Joint Labour Committee (JLC) for the Contract Cleaning
Industry in the City and County of Dublin was established by the
Labour Court in 1984. In May, 1987 an agreement on pay and
holidays was reached at the JLC and this was incorporated in an
Employment Regulation Order dated 22 June 1987. It was also
agreed that a range of other items would be the subject of further
negotiations. Local level discussions failed to reach agreement
on these items and the matters were referred to the conciliation
service of the Labour Court. No basis for a settlement was
reached at a conciliation conference held on 17th May, 1988 and
it was agreed that the matters would be referred to the Labour
Court for investigation and recommendation. A Court hearing into
the dispute was held on 26th July, 1988.
Claim (a) Provision of a written contract of employment:
Background:
3. The Unions are seeking that a written statement of the terms
of the contract of employment be provided to all workers employed
on a regular basis within twenty eight days of taking up the job.
The employers were willing to undertake that a contract of
employment will be provided to all staff which should include the
terms and conditions established by JLC but are not prepared to
limit management's right to transfer staff between sites.
UNIONS' ARGUMENTS:
4. 1. There are certain accepted minimum points which should
be contained in a contract of employment (details supplied to
the Court).
2. The right to a written statement of the terms of
employment is guaranteed by law to workers who work for 18
hours or more per week and should be extended to those in the
contract cleaning industry who work for shorter periods per
week.
EMPLOYERS' ARGUMENTS:
5. 1. Contracts are provided to staff which reflect the
standards and policies of the particular employment
relationship. They cover a wide range of issues. The
employer side is not willing to agree to a de-limitation of
the fundamental right to transfer staff when, in management's
view, the need arises.
Claim (b) - minimum notice:
UNIONS' ARGUMENTS:
6. 1. All workers should receive notice of termination of
employment in line with the Minimum Notice and Terms of
Employment Act, 1973 regardless of hours worked. In the event
that a contract or employment relationship ends before the
necessary notice can be given the equivalent compensation
should be paid.
2. There is nothing to prevent an employer building a
minimum notice provision into the grievance procedure.
EMPLOYERS' ARGUMENTS:
7. 1. If amendments are required on the hourly thresholds
contained in the Minimum Notice and Terms of Employment act,
1973 then this is a matter for the Oireachtas. If the Court,
or the JLC, places a burden specifically excluded by the
legislation then it is acting ultra vires.
2. Until recently a 21 hour weekly service requirement
applied but this was reduced to 18 with the enactment of the
Protection of Employees (Employers' Solvency) Act,1984. It is
to be presumed that an hourly threshold of 18 hours per week
was considered reasonable by the legislators. This threshold
should not be reduced for the contract cleaning industry alone
and it would be more appropriate for the unions to raise the
matter with the Department of Labour which is reviewing these
matters.
Claim (c) - Protection of Employment Act:
UNIONS' ARGUMENTS:
8. 1. The Unions are seeking the extension of the benefits of
this Act to all locations where contract cleaners are employed
irrespective of the number of employees at each site. The
Registrar of the Labour Court or the JLC, instead of the
Minister for Labour, could be notified of impending
redundancies. This would be most effective if the employers
were collectively to press the users for common dates for
termination of contracts.
EMPLOYERS' ARGUMENTS:
9. 1. The same argument applies here as to the claim for
Minimum Notice.
2. Most contracts do not have an expiry date. Written
contracts are rare in the industry.
Claim (d) - Redundancy payments:
UNIONS' ARGUMENTS:
10. 1. The Unions are seeking a standard minimum payment of 1.6
times statutory entitlement to any person employed
continuously by a company for 2 or more years to be calculated
as though the person is covered by the Redundancy Acts.
EMPLOYERS' ARGUMENTS:
11. 1. The employer's side believes that an across the board
arrangement (with legal backing) on redundancy payments would
be entirely inappropriate and impractical.
2. There is a threshold of 18 hours per week for redundancy
legislation to apply and any reduction in this threshold is a
matter for the legislators alone.
3. The 60% rebate on statutory redundancy compensation
provided in the redundancy legislation would not be available
to employers acting outside that legislation and this would
have a major cost impact.
4. The concept of establishing set severance levels on an
industry wide basis ignores the particular circumstances
surrounding each redundancy and is not the practice within
industry in general.
Claim (e) - Continuity of employment:
UNIONS' ARGUMENTS:
12. 1. The Unions are seeking to establish the principle of
continuity of employment as between one contractor and another
on each site on change of contractor, subject to a three month
probationary period. The only exceptions to this would be a
specific relevant evidenced request by the client,
falsification of income tax records or previous relevant
evidence of gross misconduct. The basis for calculation of
all matters relating to holidays, promotion, transfer,
redundancy etc., would be service on site rather than service
with a particular employer. In the event of there being more
workers on a site than are required by a new contractor,
length of service on the site should be the determining
factor. The Unions' members have decided ,after detailed
consideration, that there is no justification for a worker
with service with the contractor taking precedence over
workers with longer service on the particular site albeit with
different employers.
12. 2. Over the last few years the practice has been that the
Unions sought re-employment with the new contractor. The
Unions are seeking to establish a principle of good practice.
EMPLOYERS' ARGUMENTS:
13. 1. The industry is a contract industry based on the
principles of competitive tendering. A contractor must be
free to recruit and appoint staff to work the particular
standards and methods required by the particular firm. The
arrangement sought by the Unions would undermine the
employers' fundamental right to recruit the most suitable
staff for a particular contract. Essentially the Unions are
seeking to confer permanent status to workers on a particular
site, thereby disregarding the reality that this is a contract
industry.
2. There is a cost implication if each employer is
guaranteeing the service of the worker in relation to previous
employers. In addition, each company has its own regular
staff and its obligation is to those workers.
3. The claim ignores the reality that clients are often
dissatisfied with the standard of the service carried out by
existing contractors and require staffing changes. Often
replacement contractors are sought for this very reason and
not simply to alter invoicing arrangements.
4. The adoption of the Union's approach could have
fundamental ramifications in other contracting industries.
5. It would be very unreasonable to treat an employee who
has long service with a particular employer, but relatively
short service on a particular site, less favourably than
an employee who is new to the employer but may have been based
on that site with another employer for a longer period of
time. If the employee with the long company service were to be
made redundant on the ground that he/she had least service on
a particular site, this could be deemed to be unfair
selection for redundancy in the context of the Unfair
Dismissals Act, 1977.
6. A standardised approach the this issue is not feasible
and it is more prudent to examine the merits of each
particular situation as it arises.
Claim (f) - Maternity leave:
UNIONS' ARGUMENTS:
14. 1. The Unions are seeking payment for maternity leave in
accordance with the terms of the maternity legislation for
those who are employed for less than eighteen hours per week
in line with established practice throughout all sectors prior
to the introduction of the maternity legislation. Any woman
availing of maternity leave should have the right to return to
the site on which she was previously employed unless that
contract no longer exists, in which case she should be
provided with suitable alternative employment by the company.
No worker should be forced to transfer to an alternative
location due to her availing of maternity leave and this
practice should apply even if full paid maternity leave does
not apply.
EMPLOYERS' ARGUMENTS:
15. 1. The same legal argument applies here as for the other
claims excluded by employment legislation.
2. The introduction of paid maternity leave would have
major cost implications for a labour intensive industry which
is predominantly female. For those employees who do not come
within the scope of the legislation the cost of providing paid
leave would fall solely on the employers.
Claim (g) - negotiation of a sick pay scheme:
UNIONS' ARGUMENTS:
16. 1. The Unions are seeking the negotiation and conclusion of
a reasonable sick pay scheme to cover all employees in the
industry. There is clear evidence of workers returning to
work although they are not fit to do so, especially where the
workers are the sole income earners in the family and cannot
afford to be at a loss of their income for even a full week.
This also applies to workers who have legal actions pending
due to accidents at work as they cannot afford to await the
outcome of the legal procedures before returning to work, even
if they are unfit to do so.
EMPLOYERS' ARGUMENTS:
17. 1. The introduction of paid sick leave would have very
serious cost implications and cannot be considered in a
climate where payroll costs have already risen greatly within
a short space of time. While absence levels vary, attendance
levels are particularly poor on certain sites. The provision
of paid sick leave would not improve matters.
2. It is significant that the Minister for Social Welfare
is presently considering significant alterations to the State
Disability Benefit Scheme. It is understood that no final
decisions have been taken in this regard.
Claim (h) - negotiation of a pension scheme:
UNIONS' ARGUMENTS:
18. 1. The Unions are seeking the negotiation and conclusion of
an appropriate pension or insurance scheme on an industry
basis in line with that negotiated in the printing industry
where the pension is based on service in the industry and not
a particular company.
2. With fewer women employed on the basis of a full stamp,
even a contributory old age pension is a faint prospect for
most women represented in the industry. This results in women
working well beyond normal retiring age with no prospect of
any income in their old age. Those currently in employment
face the prospect of extreme poverty in old age in the
absence of any income from either the state or a pension fund.
3. The families of those who are the sole income earner
face the prospect of an immediate sharp drop in income due to
the absence of any death-in-service benefit and this can have
a drastic effect on some families particularly where there are
young children.
EMPLOYERS' ARGUMENTS:
19. 1. The costs associated with the introduction of a Pension
Scheme would be prohibitive and the employer's side has
strongly argued that same cannot be countenanced, particularly
in a climate of rapidly escalating payroll costs. It is
submitted that the provision of pensions, given the part-time
nature of the industry together with the level of staff
turnover, would not justify the costs involved.
2. No other JLC provides for pensions to part-time staff
and in this context concession of the claim would have
significant and wide implications.
Claim (i) - Disclosure of information:
UNIONS' ARGUMENTS:
20. 1. The Unions are seeking that they be provided with the
date of termination of any contract which has been signed and,
where the dates change, that they be advised of those changes.
The Unions require these dates so that they may contact the
client company or other contract cleaning companies who may be
tendering for such a contract to advise them of the Unions'
interest on behalf of the members.
EMPLOYERS' ARGUMENTS:
21. 1. The majority of contracts do not have set renewal dates
but where such dates are specified this information is
regarded as confidential to the contracting parties.
21. 2. The employer side would agree to notify the Unions as
soon as is practically possible in the event of the
termination of a contract.
Claim (j) - Change of address:
UNIONS' ARGUMENTS:
22. 1. Any company which employs members of the Union should
notify the Union of a change of name and/or address and such
information should also be provided to the Department of
Labour to cover situations where workers may not be members of
a trade union.
EMPLOYERS' ARGUMENTS:
23. 1. The employers side agrees to undertake to notify the
Unions in the event of a change in the company's name.
Claim (k) - contributions to the Revenue Commissioners etc.:
UNIONS' ARGUMENTS:
24. 1. The Unions on request should be provided with evidence
of payment of contributions of members towards PAYE, PRSI, the
Revenue Commissioners or other appropriate bodies.
EMPLOYERS' ARGUMENTS:
25. 1. The employer side has indicated that it will respond
positively to reasonable requests for information in this
regard and has proposed that the Tax Clearance Certificate
issued by the Revenue Commissioners could be provided as
evidence of payment.
Claim (l) - cancer screening:
UNIONS' ARGUMENTS:
26. 1. The employers should pay the cost in respect of any of
their employees availing of the cancer screening facility
provided by the Federated Workers' Union of Ireland. Such an
agreement was negotiated in the Printing Industry under the
auspices of the Federated Union of Employers. Such agreements
are becoming regular features of industry and most employers
are paying for time off in addition to the cost of the
screening. As this might not be appropriate in this industry
the unions are more anxious that the employers agree that the
cost, currently £16, be borne by the employer.
2. Many of the women working in the contract cleaning
industry fall into the categories most at risk from cancer and
related health problems. The facility such as that provided
by the FWUI is fast becoming an essential service.
3. Many women would avail of the Union's facility who would
not otherwise consult their own doctor.
EMPLOYERS' ARGUMENTS:
27. 1. The employer side is not prepared to concede this claim
due to the very significant cost factor involved, bearing in
mind that the industry is predominantly female and noting the
high turnover of staff.
2. It is understood that public facilities are available in
this regard and a report commissioned by the Government on the
existing screening services has now been completed and
presented to Government.
Claim (m) - Holidays:
UNIONS' ARGUMENTS:
28. 1. Since the inception of the Joint Labour Committee, where
holidays have increased in some cases from 0 to 13 days, in
others by 8 days and others by 3 days, full-time workers have
received no additional holidays in most of the contract
cleaning companies. The Unions are, therefore, seeking an
increase of 3 day's annual leave to the full-time employees of
the industry. This issue was not raised at the Joint Labour
Committee and therefore there is no difficulty of conflict
between the Court and the Joint Labour Committee.
EMPLOYERS' ARGUMENTS:
29. 1. The employer's side has rejected this claim on cost
grounds and would argue that additional leave is unjustified
in the present circumstances.
Claim (n) - Deduction of Union Dues:
UNIONS' ARGUMENTS:
30. 1. The Unions are seeking an agreement that all employers
will provide on request a facility for deducting Union
contributions from the wages of union members. The Unions see
no reason why the employers should not provide such a facility
for their workers.
2. This request is in line with the policy of the
Employer-Labour Conference.
EMPLOYERS' ARGUMENTS:
31. 1. The employers's side does not consider it appropriate to
give industry wide commitments in this regard. In a JLC
context, it is submitted that the recommendation of the
Employer-Labour Conference in 1973 to give sympathetic and
favourable consideration to requests for the introduction of
such facilities was not intended to be legally binding on
individual employers. Consequently, concession and
incorporation into JLC arrangements would not be within the
spirit of that recommendation and could pose difficulties for
some employers who might genuinely be unable to facilitate
same at present. The employer's side proposed that
discussions on this issue should take place at local level on
a company basis.
Claim (o) - Trade union training courses:
UNIONS' ARGUMENTS:
32. 1. The provision of paid time-off for trade union training
courses is an issue which has already been the subject of a
Labour Court Recommendation, LCR10343. In that the Labour
Court recommended that consultation should take place between
the I.C.T.U. and the F.U.E. However, this was considered
inappropriate by the Unions as the practical details of
providing such a facility are ones which should more
appropriately be negotiated and agreed between the two
parties. In the absence of a more general agreement, which it
may be possible to agree at central level, the Unions are
requesting that the employers agree that paid time off will be
given to all members for the purposes of attending one
three-day training course (for Shop Stewards and Deputies
where such exist) during an agreed twelve month period, say
September 1988 and September 1989. The Companies expect that
people attending such courses shall be able to attend at work
before the course in question, (i.e. 6.00 a.m. or 7.00 a.m.)
or after (i.e. 5.30 p.m. or 6.00 p.m.) but for a variety of
reasons including the fact that the courses involve a full day
on each of the days in question, such a proposal is not
practical and is indeed mischievous.
EMPLOYERS' ARGUMENTS:
33. 1. The employer side does not agree to concede paid time
off for attending such courses. The Labour Court dealt with
this matter in Recommendation No. LCR10343 when it recommended
that discussions take place at national level.
Claim (p) - Sunday working as part of holiday pay:
UNIONS' ARGUMENTS:
34. 1. On a small number of contracts in the City, mainly
hospitals and some public houses, workers are required to work
Sunday overtime on a constant or rostered basis. Such pay is
not included as part of the calculation for holiday pay and
the Unions are therefore seeking that the average of the rota
payment or the constant regular Sunday overtime payment be
included in the calculation for annual holiday purposes.
Otherwise what is in fact normal gross pay is reduced for
purposes of holiday calculations and in the Unions' view this
is not in the spirit of the Holiday (Employees) Act.
EMPLOYERS' ARGUMENTS:
35. 1. This claim is rejected on cost grounds, particularly
when annual leave arrangements have risen, in many cases, from
nil to thirteen days over a very short space of time. Further
costs under this heading cannot be conceded at the present
time.
Claim (q) - Dispute procedure:
UNIONS' ARGUMENTS:
36. 1. There are no procedural agreements in the industry for
the handling of grievance or disciplinary difficulties. The
present system relies on a combination of good will, trade
union activity, individual knowledge and the procedures under
the Industrial Relations Acts which allow recourse to rights
commissioners and the Labour Court. This entire procedure is
not satisfactory as it leads to unofficial industrial action,
unfair dismissal, an unhealthy level of reliance on the Rights
Commissioner and Labour Court hearings, poor day to day
industrial relations and the inability of employers themselves
to deal with some very genuine problems of absenteeism or bad
work.
2. The lack of trade union history and involvement over the
years has resulted in many workers, including shop stewards,
being unfamiliar with the normal practices which are followed
both by employers and employees. Therefore, it is essential
than an agreement is concluded on a clear and easily
understood dispute and disciplinary procedure.
EMPLOYERS' ARGUMENTS:
37. 1. The employer side acknowledge that there is merit in
introducing disputes procedures. In many instances such
procedures are included in contracts of employment detailing
the particular processes in the employment in question. It
would not appear feasible, however, to seek to apply an across
the board union/management document, with legal backing,
particularly in an industry with a large proportion of
non-unionised staff. The employer side would suggest that
this matter be discussed on a local level basis.
UNIONS' GENERAL ARGUMENTS:
38. 1. The Unions have made these claims for practical reasons
and to give the workers their basic rights to enjoy a
reasonable level of job security within the industry together
with a modest level of benefit. The workers in the industry
should be treated at least as well as workers in other sectors
not protected by employment legislation and better where
necessary.
2. Because of the nature of the industry the Unions believe
that it is essential that any agreement reached on all or any
of the points of the claim should be formalised into a
Registered Agreement to operate under the auspices of the
Labour Court. This would be the most effective way of
protecting legitimate and legally operating employers from
those companies operating in the black economy. The Unions
are not seeking to extend the employment legislation but
rather have proposed that the good practice established by
that legislation should be provided for in the form of an
employment agreement.
38. 3. The Unions recognise that concession of the claims would
be a major step forward for the workers. Indeed the nature of
employment relationship would be fundamentally changed. The
cost elements, including those involving contributions from
the workers, could not be implemented in one stage and it
would be necessary to agree a timetable for their
implementation, preferably during a phased long-term agreement
in the current pay round.
EMPLOYERS' GENERAL ARGUMENTS:
39. 1. The Unions' claim involves a large number of items, many
of a cost increasing nature, which the employers believe are
unjustified in the present climate. The cost considerations
are exacerbated by the large number of contractors in the
industry who, it is believed, are not fulfilling their
obligations under JLC arrangements. The operation of the JLC
has resulted in a payroll cost increase in excess of 42% since
1st February, 1985, excluding the cost of annual leave
entitlements. Further increases in payroll costs will result
in staff numbers being cut to reduce costs.
2. In the employers' view it would be totally inappropriate
and impractical to give legal effect across the board to some
items raised by the Union side. Their concession would serve
to undermine the principle of competitive tendering on which
the industry is based.
3. The Court should not recommend that the terms of
employment legislation be altered as that is solely a matter
for the legislature. If the JLC was to make an employment
regulation order which changed the application of the
employment legislation with respect to the contract cleaning
industry then the JLC would be acting ultra vires and the
order would not be legally enforceable.
RECOMMENDATION:
Due to technical reasons this Recommendation is only available
when the full document is displayed in the Database.
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Claim (a) - Provision of a written Contract of Employment:
The Court recommends that all employers should, on request or
within one month of the commencement of employment, provide each
employee with a written statement of the workers' terms of
employment including:-
1. The date of commencement of employment.
2. Details of pay, including overtime, commission and bonus
and the methods of calculating them.
3. Whether pay is to be weekly, monthly or otherwise.
4. Conditions about hours of work and overtime.
5. Holiday entitlements.
6. Sick pay arrangements and pension schemes, if any apply.
7. Periods of notice or, if the contract is for a fixed
period of time, the date when the contract will expire.
8. Grievance and disciplinary procedures.
9. The name of the trade union representative in the case
of employments where the terms and conditions have been
negotiated with a trade union.
Claim (b) - Minimum Notice:
The Court recommends that without prejudice to the legal
entitlement of workers under the Minimum Notice and Terms of
Employment Act, 1973 all employers should agree to give the
following notice to all workers irrespective of the number of
hours worked per week.
Length of Service Minimum Notice
Thirteen Weeks to two years One Week
Two years or more Two Weeks
Claim (c) - Protection of Employment Act:
The Court recommends that employers give all reasonable notice of
impending redundancies to the workers concerned.
Claim (d) - Redundancy Payments:
The Court does not consider that it would be possible to recommend
a standard amount of redundancy pay for all circumstances.
Various factors such as the size of company and the availability
of other work would have to be taken into account. The Court
would recommend that the multiple of 1.6 as claimed by the unions
be accepted as a desirable standard.
Claim (e) - Continuity of Employment:
Having regard to the nature of the industry, the Court considers
that guaranteed continuity of employment on a particular site is
an unattainable, though desirable, objective. The Court does not
therefore recommend concession of this claim but does recommend
that where a new contractor takes over a site, full consideration
should be given to those workers who are unemployed as a result of
the change.
Claim (f) - Maternity Leave:
The Court recommends that employers agree that in so far as
maternity leave and rights of return to work are concerned women
in the industry should enjoy the same rights irrespective of the
number of hours worked per week. In view of the disproportionate
cost and the unpredictability of its incidence on a particular
contract the Court does not recommend that the employers should be
obliged to pay wages during maternity leave.
Claim (g) - Negotiation of Sick Pay Scheme:
The Court recommends concession of this claim.
Claim (h) - Negotiation of Pension Scheme:
The Court recommends concession of this claim.
Claim (i) - Disclosure of Information:
The Court recommends concession of this claim.
Claim (j) - Change of Address:
Employers whose workers are in membership of a trade union should
notify the union of any change of name or address.
Claim (k) - Contributions to Revenue Commissioners etc.:
Where a trade union requests it, employers should provide evidence
of all payments made to the Revenue Commissioners or the
Department of Social Welfare on behalf of union members.
Claim (l) - Cancer Screening:
The Court recommends that employers agree to refund to any
employee the cost (currently £16) of availing of the cancer
screening facility provided by the Federated Workers Union of
Ireland on presentation of receipt.
Claim (m) - Holidays:
In the light of the fact that holidays up to 1989 have been agreed
unanimously at the Joint Labour Committee the Court does not
recommend concession of this claim.
Claim (n) - Deduction of Union Dues:
The Court recommends that on written requests from workers the
employers should agree to deduct union dues at source.
Claim (o) - Trade Union Training Courses:
The Court recommends that the unions organise these courses in
such a way as to facilitate the attendance of shop stewards having
regard to the fact that most of the workers are required to work
early in the morning and late in the evening.
Claim (p) - Sunday Working as Part of Holiday Pay:
Where Sunday working is part of the normal weeks work or regularly
part of a roster it should be included in holiday pay and the
Court recommends accordingly.
Claim (q) - Dispute Procedure:
The Court recommends that the unions and employers agree to a
model procedure to which both sides should adhere in resolving
disputes. The procedure should be simple and provide for
reference to a third party before a strike or lock-out occurs.
General:
The Court has given consideration to the question as to how these
recommendations can be comprehensively and universally
implemented. This is an important question because, if the
benefits of this recommendation are not generally applied, the
employers who do observe them will be at a competitive
disadvantage in tendering for or otherwise securing future work.
The Court does not think that the vehicle of a Registered
Employment Agreement is appropriate.
The Court recommends that the F.U.E. and the Unions now meet under
the chairmanship of a Industrial Relations Officer to agree the
precise form by which recommendations A,B,F,I,J,K,L,N&P will be
incorporated in the Employment Regulation Order. The other
recommendations should be the subject of an alternative parallel
agreement.
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Signed on behalf of the Labour Court
John M Horgan
25th August, 1988 ---------------
R.B./U.S. Chairman