Labour Court Database __________________________________________________________________________________ File Number: CD88884 Case Number: LCR12165 Section / Act: S67 Parties: ELECTRICITY SUPPLY BOARD - and - ELECTRICITY SUPPLY BOARD OFFICERS ASSOCIATION |
Dispute relating to staffing levels.
Recommendation:
Due to technical reasons the Recommendation paragraph is only
available when the full text of the document is displayed.
Division: CHAIRMAN Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD88884 RECOMMENDATION NO. LCR12165
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 18
PARTIES: ELECTRICITY SUPPLY BOARD
and
ELECTRICITY SUPPLY BOARD OFFICERS ASSOCIATION
SUBJECT:
1. Dispute relating to staffing levels.
BACKGROUND:
2. In October, 1988 the Union membership in a ballot voted in
favour of industrial action and this began on 2nd November, 1988.
On 11th November, 1988 talks commenced between the Company and a
group of unions and on 14th November, 1988 the Company put forward
proposals for resolving the dispute and establishing a framework
for future relationships with the Union. These were rejected by
the Union. The Court decided to investigate this dispute under
Section 18 of the Industrial Relations Act, 1969 following a
request by the Irish Congress of Trade Unions and after
consultation with the Minister for Labour. On 18th and 19th
November, 1988 the Court held public hearings. The following
arrangements were agreed at the request of the Labour Court:-
- the Union representatives have agreed to recommend to
the executive of the Union that the strike will be
called off;
- management is giving a copy of the Activities Review
Report to the Union and provided the strike is called
off will discuss the contents with the Union.
- in the meantime the Labour Court will continue with its
investigation and will issue its full recommendation in
due course.
The strike was called off on Monday 21st November, 1988 and work
resumed on 22nd November, 1988.
UNION'S ARGUMENTS:
3. 1. The Union is not seeking a veto on management's right to
run the Company and determine the organisation structure.
However, the Union has the right to negotiate fully on job
numbers and change and not just on the impact or effect of
management decisions on reductions in staffing. This and the
paralleled breach of agreements is the core of the dispute.
However, the matter has been widened by the inclusion of other
issues by management. These other issues have been concerned
with; negotiation of change, binding arbitration, elimination
of the Union's right to take industrial action and alterations
to existing procedures.
2. Following negotiations on a reorganisation for
distribution regions and head office departments a Joint
Industrial Council Recommendation was issued in January, 1987
(Case No. 1743) which was accepted by our members. The
agreement included defined job reductions and overall staffing
levels were set which it was recognised would require changes.
However, while this issue was ongoing management became
involved in an Activity Review. Arising from the Activity
Review senior management set the maximum number of staff and
determined for each local manager the level of activity to be
achieved and the staffing for this. The Union was advised
locally of the staff reductions which had been determined, no
explanation was given regarding the criteria used or what
activity is to be dropped. This action was taken although a
Code of Practice is in operation which deals with the
introduction of systems. This Code provides that management
give details of likely effects on job/manning levels, etc and
during the consultation stages, proposals for re-assignment,
re-training, etc. In addition, in the last year through
negotiation and the use of existing procedures the Union has
negotiated on staff in many areas. By these means reductions
in staffing numbers have been agreed following discussion and
negotiation. The Union's record of negotiations on job
numbers and implementation of change clearly demonstrates its
constructive and progressive approach. There is no reason for
the Activity Review to have been dealt with in a different
manner by management and no relevant information on its
operation has been supplied. The Union is prepared to
negotiate Activity Numbers either centrally or locally.
Central negotiations with full employee relations input would
be preferable as an overall manpower plan has been prepared.
It would also be a more appropriate forum for establishing the
different working patterns to deal with agreed surplus and
redeployment.
3. 3. Arising from the 7th May, 1987 Agreement, a joint
working party was established to develop machinery for the
implementation of change. This working party had not reached
agreed conclusions when the Company withdrew. There are three
existing agreements - reorganisation, CO/EO, Sales Staff -
which provide for specific change. In relation to all other
issues relating to change and its negotiation the Union will
commit itself to use the existing agreed machinery
constructively to achieve the implementation of change. The
Union's commitment to this is demonstrated by the negotiations
on Stores Configuration where the Union negotiated on
reductions in jobs numbers, but some outstanding issues are
being processed fully through the procedures. In its document
of 14th November, 1988 the Company has sought to impose
binding arbitration and a 'no strike clause' on this Union.
Binding arbitration is not provided for in the JIC
Constitution except by mutual agreement. The effect of
the introduction of a twelve month period where no industrial
action could take place would be that as any re-entered claim
would be on change the binding arbitration clause would apply
along with a further twelve months no strike clause. The 7th
May, 1987 Agreement and agreements on the JIC apply to all
unions in the Company. These do not provide for amendment
without the agreement of the parties. This Union will not
sanction any change to these agreements and will not accept
any restrictions outside of these on taking industrial action.
4. The Court should affirm the Union's right to negotiate
on staffing numbers and change and decide that the extra
issues be removed from the agenda. Existing agreements and
procedures fully cover all aspects and should be used by both
parties constructively to maintain good industrial relations.
The Court should recognise the intrinsic role of the Joint
Industrial Council (JIC) by providing a resolution to the
parties which maintains and strengthens the role of that
Institution and which will provide a detailed mechanism and
framework for the parties to work within to resolve the
outstanding issues. In particular, the JIC should ensure that
agreements are implemented as intended and any future
agreements should be registered with it. The JIC should
monitor the implementation of these registered agreements at
the request of either party and use them in making
recommendations on any disputes referred to it. Disputes on
existing agreements should be discussed between the JIC
Chairperson and the parties in a mediatory manner. In
addition, the parties under the auspices of the JIC
Chairperson should; list all their issues in dispute, discuss
whether a dispute should be negotiated centrally or locally,
where agreement cannot be reached the negotiations should be
conducted as recommended by the JIC, and all issues should be
processed through the agreed procedures and in line with
existing agreements.
COMPANY'S ARGUMENTS:
4. 1. The present dispute is not about protecting jobs. The
Company has consistently stated that there is no threat of
anybody losing employment and compulsory redundancy is not
contemplated. Guarantees have been in existence since 1985
that there will be no forced redundancy, no forced relocation
of family or home and no reduction in salary. The dispute is
a challenge to management's right to run the business cost
effectively and give a top class service to customers and to
the responsibility of management to implement necessary
change. Management has the sole right to determine the
organisation and business of the Company.
2. The Union has continuously tried to hinder change
including the implementation of new systems. In July, 1987
the Joint Industrial Council issued a recommendation (Case No.
1827) relating to clerical officers, executive officers and
supervisory grades. As a result of this the workers concerned
received substantial benefits including regrading and lump sum
payments. The agreement enabled the Company to implement a
new Customer Inquiry System (CAS 2) which had been ready for
implementation for some time. However, the new system had
just started when the Union made another claim for using the
system. The Joint Industrial Council investigated this and
stated that CAS 2 had already been paid for (Case No. 2082).
However, the JIC's recommendation has been rejected by the
Union and it has advised management of its intention to take
industrial action. In addition, in the agreement of 7th May,
1987 between the Company and unions there was a joint
commitment to the peaceful and speedy implementation of change
and that consultations and negotiations would be governed by
this. The agreement also provided for the setting up of a
high level joint working party to develop machinery to ensure
the speedy and peaceful implementation of change. The working
party was set up but it was clear that this Union had no
interest in developing any procedure which would ensure the
implementation of change and the Company was left with no
option but to withdraw. However, the Company made a public
unilateral comment to behave in the spirit intended in the
May, 1987 agreement (details supplied to the Court).
3. The Company has not breached any agreements on staff
numbers. Negotiations on the January 1987 agreement
concerning the reorganisation of head office departments and
the distribution regions, were not concerned with the changes
themselves but on the impact on staff of changes determined by
management. Staffing levels indicated in the agreement were
never intended to be absolute but were interim. Later in 1987
the Company carried out a detailed review of activities in all
head office departments and extended this to the distribution
regions in 1988. The purpose of the review was to decide the
activities which the organisation needed to engage in to give
a cost effective high customer service. The basic assessments
were made for each department and region by the management
team in the location itself, with the proviso that changes in
work needs or activity levels could adjust the plan upwards or
downwards. The total staffing target for the Company at any
time is the aggregate of the forecast requirements of all the
local department and regional managers. Management determines
the levels of activity to be performed and from this staffing
levels are determined. The Union can make representations
regarding the level of staffing for the levels of activity,
but the latter is non-negotiable. Under the 1987
reorganisation it is the local managers who have the devolved
authority, full responsibility and accountability for planning
and running their areas of operation. It is to these managers
that the Union should make any representations about staffing,
these will be listened to. If the Union's representations
have substance to them they will be entertained and if not
there are agreed procedures for resolving differences. The
Company in its document of 14th November, 1988 which applies
to this Union alone has put forward proposals for resolving
the dispute and establishing a framework for a better future
relationship with the Union. Clause 2.4 of the document
states that an Industrial Council recommendation about change
will be implemented and no industrial action will be taken for
twelve months during which time either party may re-enter a
claim based on new evidence or operational experience. This
clause would also deal with the Council Recommendations
relating to CAS 2 and the closure of shops (Case No.s 2082 &
2084). The purpose of this clause is to prevent the Union
from continually imposing its veto on progress. Since 1971
the Company has accepted every single Industrial Council
recommendation issued.
4. The present strike has taken place with complete
disregard to the agreed industrial relations procedures in the
Company and is a clear breach of the peace clause of the 7th
May, 1987 agreement. The Union did not refer the dispute to
the Industrial Council and did not respond to management's
requests to meet with Regional and Departmental managers to
discuss the staffing situation and negotiate on the impact of
any staff reductions proposed. All matters at issue which
were cited by the Union in its strike ballot paper were either
resolved, in the process of resolution or answered
conclusively by management when the ballot was completed. In
the circumstances, the Court should decide that the strike is
completely unjustified and the Company's document of 14th
November, 1988 was a reasonable attempt to define a framework
for ending the strike and promoting better relations with the
Union and should be accepted as the basis of an approach to
industrial relations involving this Union.
NOTE: All documentation referred to was supplied to the Court.
RECOMMENDATION:
Due to technical reasons the Recommendation paragraph is only
available when the full text of the document is displayed.
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5. 1. Section 18 of the Industrial Relations Act, 1969 provides
that the Court may investigate a dispute in circumstances
where "there are exceptional circumstances which warrant it
so doing" even though the dispute has not been the subject of
a conciliation conference.
2. The Court has undertaken this investigation following a
request from the Irish Congress of Trade Unions and
consultation with the Minister for Labour, because the Court
considered that there are exceptional circumstances in the
dispute which warranted the intervention.
3. The Minister's legitimate interest in the dispute arises
from the potentially disruptive effect on the whole life of
the country of any strike which interrupts or threatens to
interrupt the supply of electricity.
4. The concern of the Irish Congress of Trade Unions stems
not only from the threat to employment generally which the
strike entailed but it was also concerned at some of the
provisions put forward by the ESB as a basis for resolving
the dispute which in the view of ICTU had far reaching
implications for other unions in the ESB and for the trade
union movement generally.
5. The ESBOA has expressed a legitimate concern to maintain
the traditional trade union devices, including the right to
take industrial action in furtherance of the protection and
enhancement of its members interests and to ensure that it
can operate freely.
6. The ESB management has stated its obligation to manage
the resources of the Company in accordance with the
objectives set out by statute and the Board's policy. Theirs
is the primary obligation "to provide a good, reliable
electricity service to the people of Ireland for all the
users for which it is needed at the lowest possible price."
7. All these interests must be taken into account and
balanced and the Court in this recommendation has had full
regard to all of them. The Court therefore recommends an
approach which recognises the right and indeed the duty of
the management to run the Company, the legitimate rights of
the union to effectively represent the interests of its
members and the obligation which both the management and the
union owe to ESB customers and the public generally to
provide a continuous electricity supply without disruption or
fear of disruption. The Court has had full regard to the
views of Congress and there are no provisions in this
recommendation which are not already part of accepted
practice in the ESB and industry generally
8. The ESBOA submission states "The crucial issue is that
the established right to real negotiations on manning,
staffing levels, systems and change is affirmed." In
particular the ESBOA felt that the management was acting with
bad faith and contrary to previous practice in not agreeing
to negotiate on the outcome of the report of a management
exercise know as the Activities Review Report. The ESBOA saw
the adoption of this report as a breach of a previous
agreement on staff numbers. The refusal of the management to
disclose the report and to negotiate on it gave rise to
mistrust. In those circumstances the ESBOA balloted its
members to see if they were in favour of industrial action
"to protect our jobs, our work and our agreements". A
majority of those who voted were in favour of industrial
action in the terms of the ballot.
9. Judging from the submissions of the parties it appears
that the dispute could have been avoided if the ESB had
agreed "to negotiate on the numbers" or if the ESBOA had
agreed to examine and negotiate on numbers at local level
only. During the course of the hearing it emerged that the
ESBOA was basing its claim to be allowed negotiate on the
Activity Review numbers on a misunderstanding of the nature
of the Activity Review exercise and the use to which the
report would be put. If the ESBOA had realised that the
report was nothing more than a compilation of the results
derived from assessment done in each of a large number of
locations and that it was not a master plan for the future of
the Company then it would have realised that there was no
point in seeking negotiations on the report. Alternatively
if the ESB had shown the report to the ESBOA and explained
its purpose to the union then perhaps the union would have
realised that there is little point in bargaining on that
document. Ideally this should have been done in the National
Participation Council established by agreement in August,
1985.
10. Having regard to the nature and purpose of the report
the Court asked the ESB management to give to the ESBOA a
copy of the Activities Review Report and to agree to discuss
its contents. The purpose of these discussions was not to
negotiate an alteration to the document as both sides realise
that this is not possible. The ESB management should however
have due regard to the views of the ESBOA in any decisions
arising from the document in the future. These proposals
were accepted by both sides as a solution to the immediate
problem and a return to work has taken place.
11. This does not resolve the more fundamental problems
which underlie the dispute and it is to these problems that
the Court now turns.
12. It appears to the Court that there is a certain
confusion in the practices in the Company relating to the
proper role of joint consultation and the different role for
negotiation. The Court therefore must clarify what it
intends the terms to mean.
Negotiation occurs where both sides accept that the issue
under consideration is one where the decision will be a joint
one, by agreement if possible, probably involving a
compromise, and that if there is not agreement the decision
will be made elsewhere, through mediation and eventual
agreement or alternatively by arbitration.
Joint Consultation is where one party has and will retain the
responsibility and power to make the decision but where both
sides listen to and genuinely take account of the view of the
other before the final decision is made. It is accepted that
following consultation both sides take their own decisions in
accordance with their own responsibility.
Mediation is where both sides agree that they will give
serious and favourable consideration to the view of an
independent third party chosen by them to make a
recommendation on the issue in dispute. Labour Court and JIC
recommendations generally fall into this category.
Binding Arbitration is where both sides agree in advance that
they will accept the determination of the third party on
issues in dispute. An example of this is where a dispute is
referred to the Court under section 20(2) of the Industrial
Relations act, 1969. A further example is provided for in
the constitution of the ESB Joint Industrial Council where
cases dealt with under clause 8(a) and (b) are binding on
both sides.
13. The nature of the electricity supply industry demands
that disputes which threaten to put the continuity of supply
at risk must be kept to a minimum. Thus the parties to
collective bargaining in this industry are under a special
and almost unique obligation to settle their differences
without inconveniencing the rest of the economy. In the
normal course of bargaining in industry the main or only
casualties of failure to conclude agreements amicably are the
workers and employers directly involved. In the electricity
supply industry however the public and industry at large are
potentially more at risk than the parties directly involved.
For this reason there have been calls in the past for the
statutory banning of strikes in essential services such as
electricity supply. The Court does not believe that the
situation in the ESB is so out of hand that such legislative
action is currently necessary or justifiable. What is
necessary and justifiable is that the ESB and the ESBOA
should agree means which will ensure that the strike and
lock-out weapon is voluntarily and bilaterally set aside
except for the most serious of issues and then invoked only
as a last resort.
14. As agreements generally now stand the ESBOA is free to
reject Joint Industrial Council recommendations and ballot
the members to engage in industrial action up to and
including strike action in pursuit of any claim except for
claims under clause 8(a) and (b).
15. The Court has examined the constitution of the Joint
Industrial Council and does not consider that it needs to be
altered to accommodate the proposals which are contained in
this recommendation. The JIC provides a very fair and
effective way of resolving disputes without recourse to
industrial action. The Court therefore fully endorses the
procedures of the JIC and does not wish to supplant or
detract from them in any way. Indeed the Court urges both
sides to work to enhance the work and status of the JIC. In
this respect the Court would draw attention to its
recommendation in a previous intervention in 1984 when it
stated:
"... the intention of the Court was, and remains,
that it should be seen by all concerned that the ESB
Industrial Council is the final stage of the
industrial relations procedures for the
determination of the present and other similar
problems arising in the service."
16. From the examples which the ESB gave in its submission
of the disputes which have damaged relations between it and
the ESBOA, the Court has come to the conclusion that there is
a need for both parties to draw a distinction between issues
which affect the vital and fundamental interests of the
members of the ESBOA and those which do not. The ESBOA must
be allowed to retain the right to take industrial action in
defence of its members basic and fundamental interests. To
the extent that some of the ESB's proposals entitled
"Framework for Relationship between ESBOA and ESB", dated
14th November, 1988, do not clearly preserve that right the
Court does not consider them reasonable and does not
therefore recommend those proposals as a long term solution
to the difficulties in the relationship between the parties.
On the other hand, the public interest demands that the ESBOA
should voluntarily forego the right to strike on matters
which do not prejudice any vital or fundamental interest of
its members. This it already does under section 8(a) and (b)
of the JIC constitution.
17. There are many good features to the existing Code of
Practice agreed between the ESB and ESBOA on 27th July, 1987,
but, in the Court's view it does not go far enough in
ensuring the peaceful resolution of disputes. Given the
almost unique guarantees of security of employment which the
ESB has given to its staff including an unequivocal guarantee
of no forced redundancy, no forced relocation of family or
home and no reduction in salary, the Court does not think it
unreasonable for the staff to accept the recommendation of
the JIC on all matters arising out of the implementation of
information systems, thereby extending the scope of an
existing provision of the Code of Practice.
18. The Court considers that the parties themselves should
agree as to what issues are basic and fundamental and which
are not. The ESBOA should retain the right to take
industrial action on the issues of pay and main conditions of
employment. Examples of issues which are not of basic or
fundamental importance and which would not warrant the taking
of strike action are; allocation of work, changes in work
patterns or organisation, disciplinary matters, provision for
study leave or compensation for disturbance. There are many
other matters which, though proper for full negotiation, are
not of sufficient importance ever to warrant the issue of the
threat of strike in the electricity supply industry. The
Court therefore recommends that the two sides should agree on
lists of items which would fit each category and that the JIC
should be the final and binding arbiter as to which category
any particular dispute relates. The issues which do not
affect a vital or fundamental interest should be dealt with
in accordance with clause 8(b) of the JIC constitution i.e.
both sides agree in advance to accept the recommendation of
the JIC.
19. The Court considers it an essential part of the
recommendation that the management of the ESB should agree to
make greater use of the scope for consultation on appropriate
issues. Under the new decentralised system of management the
unions are at a comparative disadvantage at the bargaining
table. That imbalance must be redressed by allowing the
unions greater access to information centrally than appears
to have been the case heretofore. The Court notes that the
agreement of August, 1985 on participation states:-
"The Councils will enable managers to have the benefits
of the views, opinions and experience of staff
representatives on plans and proposals before they
have been finalised. This will aid good decisions and
rapid implementation of decisions, and also
acknowledge the legitimate interest staff have in
decisions that affect them."
The Court therefore recommends that in accordance with the
commitment which the ESB gave to the unions "to full and open
disclosure, at the earliest opportunity" the unions should be
shown the business plan of the company before the Board
adopts the plan each year. This should be done through the
procedures agreed for participation at national level in the
Participation Council. The Company should however withhold
from the unions any comercially sensitive information the
disclosure of which would damage the interest of the Company.
The object of showing the plan to the unions is two fold. In
the first instance the unions must be given the opportunity
to have their view taken into account by the Board before
decisions are taken on the plans. This does not mean that
the two sides have to agree on the plan. Only the Board need
approve the annual business plan. The union however has a
right to have its views taken into account before it is
adopted by the Board. The second reason why the plan should
be shown to the union is that the union, preferably in
conjunction with the other unions in the ESB should be free
to adopt and devise its own strategy in relation to the
ultimate implementation of the plan at local level where as
the ESB submission states "The action is........."
20. In proposing that there should be greater consultation
between the unions and the management the Court does not wish
to build in any further hinderances to the efficient
operation of the industry or impede the speedy introduction
of change. Indeed the reason why the Court recommends that
there should be increased consultation is precisely to remove
the obstacles to change in work practices and methods which
have been too prevalent in the company. The consultative
process must not therefore be used to hold up the
implementation of change.
21. A large part of the reason for the frustration which
lead to the union to embark on strike action arose from its
inability to engage management in negotiation either locally
or centrally. It is accepted by the union that it must
negotiate at the level at which real decisions are taken and
in the new structure of the Company that means locally.
Measures must be put in place however to ensure that the
local management will negotiate with the trade union when
requested. It would be entirely contrary to this
recommendation for the union to find that it is simply sent
from pillar to post in its attempt to represent its members.
The union and the management must therefore meet centrally
and agree who at local level is to have the authority to
bargain with the union and on what issues. It is for the
management to ensure that the local managers are fully
conversant with their responsibility to negotiate and where
possible agree with the union on matters that are proper for
negotiation. In the event that the union finds that the
local management are not bargaining in good faith it should
bring that complaint to the attention of the central
industrial relations management who should see to it that the
matter is attended to urgently and if necessary the central
management should attend the local negotiations to ensure
that proper negotiation is conducted with the union.
22. In summary therefore the Court recommends that the union
be afforded greater access to information for consultative
purposes and that management and union agree on which items
are for negotiation and which for consultation. Those items
which are appropriate for negotiation should be categorised
as issues which affect vital and fundamental interests of the
members of ESBOA and may therefore lead to industrial action
and those which are of lesser importance and which do not
warrant such action.
23. Under the procedure which the Court recommends for the
resolution of future disputes issues such as those dealt with
in JIC Recommendations 2082 and 2084 should be accepted by
both sides voluntarily as they do not affect vital or
fundamental interests. The Court therefore recommends that
both these recommendations be accepted and implemented.
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Signed on behalf of the Labour Court
John M Horgan
13th December, 1988 ----------------
U.M./U.S. Chairman