Labour Court Database __________________________________________________________________________________ File Number: CD90548 Case Number: LCR13089 Section / Act: S67 Parties: UNIVERSITY COLLEGE DUBLIN - and - IRISH FEDERATION OF UNIVERSITY TEACHERS |
Dispute concerning the refusal of the College to use the services of a Rights Commissioner.
Recommendation:
5. The Court has considered the submissions made by the parties.
It seems clear, that under the terms of the Agreement with
I.F.U.T. the College has limited its normal options by committing
itself to reference to a Rights Commissioner on issues which are
"appropriate." Where there is disagreement as to whether an issue
is appropriate or not the College in such circumstances clearly
retains its option of referral to the Court itself. However in
the particular issue which gave rise to this case, as the College
had previously agreed that the matter in respect of other staff
members be dealt with by a Rights Commissioner and as the Court
cannot detect any difference of content in this case the question
of a disagreement as to appropriateness does not arise and the
Court is of the opinion that the College was in breach of its
agreement with I.F.U.T.
The Court therefore recommends that the College agree to have the
issue referred to a Rights Commissioner.
Division: Mr O'Connell Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD90548 RECOMMENDATION NO. LCR13089
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: UNIVERSITY COLLEGE DUBLIN
and
IRISH FEDERATION OF UNIVERSITY TEACHERS
SUBJECT:
1. Dispute concerning the refusal of the College to use the
services of a Rights Commissioner.
BACKGROUND:
2. In a letter to the College dated 12th June, 1989 the Union
claimed disturbance and inconvenience payments on behalf of eight
academic staff members who were transferred from Merrion Street to
Belfield. The Union took the view that the matter could be
expedited by applying the payments recommended in a similar case
(M.S.F. and U.C.D.) investigated by a Rights Commissioner, in
April, 1989 and subsequently upheld on appeal by the College to
the Labour Court (AD5789) refers). The Union requested that the
amount claimed be paid into the Conference and Travel Fund which
the workers concerned have access to on the same basis as the
arrangement made in respect of the transfer of academic staff from
Lyons Estate Newcastle, Co. Dublin to Belfield. (This claim was
also investigated by a Rights Commissioner and upheld by the Court
on appeal (AD5988 refers). The College rejected the Union's claim
stating that it was unwilling to make disturbance payments to the
workers concerned. A conciliation conference held on the 8th
December, 1989 failed to resolve the matter. The Union then
decided to refer the case to a Rights Commissioner, as it
considered that the matter was not being dealt with satisfactorily
by the College at the conciliation conference. The College was
not prepared to attend a Rights Commissioner's hearing but was
willing to have the matter referred to a full Labour Court
hearing. The Union considered the College's refusal to use the
Rights Commissioners service to be in breach of an agreement on
procedure (see appendix 1 for clauses 3 and 4) of procedural
agreement and referred the issue of the alleged breach to the
conciliation service of the Labour Court on the 29th June, 1990.
A conciliation conference was held on the 20th August, 1990 but no
agreement was reached. The dispute was referred to the Labour
Court on the 30th August, 1990. A Court hearing was held on the
23rd October, 1990.
UNION'S ARGUMENTS:
3. 1. In accordance with the Negotiation Agreement between the
College and the Union Management should agree to the referral
of the disturbance claim to a Rights Commissioner for him to
deal with the substantive issue.
2. The College has claimed that the dispute could be dealt
with under Clause 3 of the Agreement the sub sections of which
refer only to the Labour Court. However Clause 4.5 is also
relevant and this provides "that the dispute may be referred
either to an Industrial Relations Officer of the Court or to a
Rights Commissioner, as appropriate." As the Union found that
the issue was not being dealt with satisfactorily by the
College at conciliation level, it decided to proceed to a
Rights Commissioner instead which is the Union's entitlement.
3. There is no point in Management referring to Clause 3 as
though Clause 4 did not exist and which is perfectly clear as
to its meaning and intention. The College in correspondence
to the Union has confirmed that Clause 4 of the Negotiations
Agreement could apply in this case (which allows for referral
of the claim to a Rights Commissioner). Subsequently
Management stated that "the College does not consider
reference to a Rights Commissioner appropriate in this case."
Yet the College cannot explain how it was appropriate to agree
to Rights Commissioners hearings in the case of the Lyons and
M.S.F. Merrion Street cases and not when it came to this
claim. There is a clear inconsistency here on the part of the
College.
4. The College's poor industrial relations record has been
commented on by the Court on a number of instances in the
past. (L.C.R. 3530, L.C.R. 10484 and L.C.R. 12847 refer). It
seems extraordinary to the Union that, after these comments by
the Court, the Union now has to refer the pure issue of the
operation of a Negotiation Agreement and adherence to what
once more would generally be considered good industrial
relations practice.
5. The College should abide by the terms of the Negotiation
Agreement with the Union and use the facilities of a Rights
Commissioner as appropriate. This appropriateness is
indicated in the case of the move from Merrion Street to
Belfield by the precedents of the Lyons and M.S.F. Merrion
Street cases. The Rights Commissioner concerned has clearly
acquired a recent and indepth familiarity with these
precedents which makes hearings by him particularly apt.
COLLEGE'S ARGUMENTS:
4. 1. It is necessary to determine whether the matter falls
under Section 3 or Section 4 of the procedure Agreement. The
College considers that the claim for disturbance payment falls
under Section 3, which provides that if agreement is not
reached by direct negotiations the matter may be referred by
either party to the conciliation service of the Labour Court
and then if still unresolved to a full Court hearing. The
claim was referred to and discussed at conciliation and
subsequently referred to a Court hearing as provided for under
Clause 3.4.
2. The Union's position seems to be that the claim falls
under Section 4 of the Agreement relating to grievance
procedure. It is difficult to understand how the disturbance
claim could be regarded as a grievance but if it were Section
4 would presumably apply. Clause 4.5 provides that the matter
may be referred to a conciliation conference or to a Rights
Commissioner as appropriate. The College does not consider
reference to a Rights Commissioner appropriate in this case
and it has objected as it is entitled to do. The College
considers that in this case the logical progression from an
inconclusive conciliation conference is to a Court hearing in
which, as stated it is willing to take part.
3. The College considers that it is entitled to object to a
Rights Commissioner's investigation of the disturbance claim,
that the claims falls under Section 3 rather than Section 4 of
the Agreement on procedure, that there has been no breach of
the Agreement and that the claim should be referred for
consideration to a Labour Court hearing.
RECOMMENDATION:
5. The Court has considered the submissions made by the parties.
It seems clear, that under the terms of the Agreement with
I.F.U.T. the College has limited its normal options by committing
itself to reference to a Rights Commissioner on issues which are
"appropriate." Where there is disagreement as to whether an issue
is appropriate or not the College in such circumstances clearly
retains its option of referral to the Court itself. However in
the particular issue which gave rise to this case, as the College
had previously agreed that the matter in respect of other staff
members be dealt with by a Rights Commissioner and as the Court
cannot detect any difference of content in this case the question
of a disagreement as to appropriateness does not arise and the
Court is of the opinion that the College was in breach of its
agreement with I.F.U.T.
The Court therefore recommends that the College agree to have the
issue referred to a Rights Commissioner.
~
Signed on behalf of the Labour Court
John O'Connell
__________________________
23rd November, 1990. Deputy Chairman
T.O'D/J.C.
APPENDIX I
CLAUSES 3 AND 4 OF AN AGREEMENT BETWEEN UNIVERSITY COLLEGE DUBLIN
AND THE IRISH FEDERATION OF UNIVERSITY TEACHERS ON CONSULTATION,
NEGOTIATION AND GRIEVANCE PROCEDURES.
3. Negotiations Procedure:
3.1 Dispute regarding the following matters shall be the
subject of direct negotiations between the representatives
of the College and the Union as represented by the
representatives of the union as notified to the College
under 1.3.
(a) matters relating to remuneration, special payments,
pensions and retirement;
(b) matters relating to probation, promotion, discipline,
tenure, dismissal or termination of employment;
(c) matters relating to the granting of annual, sick,
maternity, special or sabbatical leave;
(d) matters relating to general conditions of employment,
including the working facilities necessary to the
member for the proper discharge of his or her duties;
(e) such other matters as may from time to time be
considered by either party to be the subject of
negotiation.
3.2 Direct negotiations shall be initiated by written
communication from either party to the persons designated
in accordance with Clause 1.3 above.
3.3. If agreement is not reached by direct negotiation as
provided for in Clause 3.2, the matter may be referred by
either party to the Conciliation Service of the Labour
Court.
3.4. If the matter remains unresolved, it may then be referred
by either party to a full hearing of the Labour Court.
3.5 No form of Industrial action or change in negotiating
practice or procedural shall take place unless and until
the provisions (3.2 - 3.4) above are exhausted.
4. Grievance Procedure:
4.1 The following grievance procedure shall relate to questions
arising from matters listed in Clause 3.1 above.
4.2 Any member or group of members who wish to raise any issue
related to these matters may in the first instance discuss
it with the Head of the Department concerned.
4.3 Failing a satisfactory resolution of the problem the matter
may then be raised by a local and/or national officer of
the Union with the Head of the Department concerned.
4.4 If the matter continues to be unresolved, the problem may
then be discussed with representatives of the College on
the written request of the designated officer of the Union.
4.5 Every effort should be made to resolve the issue at each
stage of the procedure prescribed above. If no settlement
is reached under the terms of Clauses 4.2 - 4.4 above, then
the matter may be referred either:-
(a) to the Industrial Relations Officer of the Labour
Court who will arrange a Conciliation Conference or
(b) to a Rights Commissioner, as appropriate.