Labour Court Database __________________________________________________________________________________ File Number: CD91326 Case Number: LCR13394 Section / Act: S26(1) Parties: PROFESSIONAL CONTRACT CLEANERS - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dispute concerning the recall of workers to the "Guinness Site".
Recommendation:
5. LCR12005, which was the basis for the Employment Regulation
Order for the Contract Cleaning Industry, stated that the Court
considered guaranteed continuity of employment on a particular
site as an unattainable, though desirable objective. The Court
went on to 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.
The Court considers that recommendation LCR12005 is equally
appropriate to the present case and does not find evidence that
continuity of employment on site to the degree claimed by the
Union is now established custom and practice in the industry.
However, the Court is not satisfied that the Company has
demonstrated that it applied the "full consideration" clause with
the goodwill implied in the Recommendation No. 12005 and in the
E.R.O. At best, the Company has advanced reasons for filling some
of the nine positions with non-I.C.S workers but has given no
reasoning for the others. Having regard to the availability of a
probationary period and the absence of any stated reason for
employing new applicants in preference to former I.C.S. staff, the
Court concludes that the Company was concerned with establishing a
"principle"
The Court is aware of the strained relationship between the
Company and the Union which existed during the month prior to
taking over the contract which has led to this dispute and is of
the view that this case is a direct result. A reasonable working
relationship is essential to avoid a recurrence of the situation
and some compromise is essential to ensure the effective
fulfilling of contracts with the minimum disruption of workers.
The Court recommends that the parties commence realistic
discussions to this end.
With regard, to the present claim, the Court recommends that to
provide a more constructive climate for general discussions, the
Company should offer the first four vacancies that occur on the
contract to displaced I.C.S. workers.
Division: CHAIRMAN Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD91326 RECOMMENDATION NO LCR13394
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 26, INDUSTRIAL RELATIONS ACT, 1990
PARTIES: PROFESSIONAL CONTRACT CLEANERS
(Represented by the Federation of Irish Employers)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dispute concerning the recall of workers to the "Guinness
Site".
BACKGROUND:
2. 1. The Company is engaged in the contract cleaning industry
and employs 700 people in the Dublin area. In 1990 the
Company lost the "Guinness" contract to another contractor.
In 1991, the company again secured the contract. Nineteen
(19) persons were to be employed on the contract for 1991 as
against 25 for 1990. The Union submitted a list of 25 names
to the Company for interview. These 25 people had been
employed by the last contractor. After interview, 10 of the
25 were employed for the new contract and 9 other workers
were recruited.
2. In the Registered Agreement which followed the
settlement of the threatened contract cleaners' dispute of
January 1990, Section VI (continuity of employment) provides
as follows:-
"Employers in the industry will give full consideration
to the position of workers who are unemployed as a
result of a change of contractor on a site."
The Union contends that custom and practice throughout the
Industry demands that the Company find work for the remaining
workers, either on the "Guinness" site or elsewhere in the
Company's operations. The Company contends that no such
custom and practice exists and no employer can be forced to
take workers on. The Company argued that it had fully
discharged its responsibilities under the Registered
Employment Agreement.
3. The dispute was the subject of a conciliation conference
on 10th June, 1991. No resolution was possible and the
matter was referred to the Labour Court on 21st June, 1991.
A Labour Court investigation took place on 9th July, 1991.
UNION'S ARGUMENTS:
3. 1. The industry is characterised by intense competition
amongst a large number of firms. Contracts are awarded on an
annual basis after a system of tendering, which frequently
leads to workers being displaced through circumstances
outside of their control. It is an established practice
within the contract cleaning industry for workers who are
displaced on their employer losing a contract, to be
re-engaged by the successful contractor. In 1990, when the
Company lost the contract for the "Guinness Site", the
successful bidder engaged 24 out of the 25 workers. The
other worker did not claim re-employment.
2. In 1988 the question of principle involved in this case
was referred to the Court. The Court issued Recommendation
No. LCR12005 in which it stated
"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."
Subsequently the provision was incorporated in the Registered
Employment Agreement. The Court stated that continuity of
employment was "unattainable though desirable". The practice
on the ground has clearly established that the aspiration is
attainable. The Company is unique in not employing displaced
staff in circumstances such as exist in this case. The
practice of employing displaced workers, has the effect of
preserving some form of continuity of employment.
3. The provision of the Registered Agreement is that "full
consideration" must be given to workers who have been
displaced. The Company employed other workers prior to the
interviews taking place (details supplied). This means that
there was a predetermined number of displaced workers to be
employed on the new contract. This is not in keeping with
the spirit or the letter of the Registered Agreement and is
contrary to the normal practice of the industry. The Company
has refused to state its reasons as to why the displaced
workers were found to be unsuitable. Seven of these workers
had previously been employed by the Company.
COMPANY'S ARGUMENTS:
4. 1. The Company have met their obligations under the section
"continuity of employment" in the Registered Employment
Agreement. The Union claim seeks to negate the
employer's freedom to contract with staff of it's choice.
The Company believe the Union claim to be unlawful (legal
opinion supplied). The claim seeks to confer permanent
status to workers on a particular site, thereby disregarding
the fact that this is a contract industry based on the
principles of competitive tendering. Concession of the claim
would undermine the Company's right to recruit the most
suitable workers for a particular contract.
2. The Registered Employment Agreement states that the
"employers" will give full consideration to displaced
workers. The onus, therefore, rest with both employers. The
Company's primary obligation is to its own workers. This
obligation was fulfilled in May 1990 when, on losing the
contract, all of the displaced workers of the Company were
offered alternative employment on other contracts. In May,
1991 full consideration was given to the displaced workers of
the other contractor as all were interviewed and 10 were
offered employment on the new contract. The Union accepted
that this practice is widespread by forwarding the names of
the displaced workers for interview.
3. The Union state that it is the practice within the
industry for a new contractor to retain all the displaced
workers from the last contractor. A number of employers have
been consulted (details supplied) and they confirm that their
primary obligation is to their own staff. People who apply
will be considered but the final decision on the composition
of the workforce must rest solely with the new contractor.
Any deviation from this principal will have implications
throughout the contract cleaning industry and ramifications
in other contracting industries.
RECOMMENDATION:
5. LCR12005, which was the basis for the Employment Regulation
Order for the Contract Cleaning Industry, stated that the Court
considered guaranteed continuity of employment on a particular
site as an unattainable, though desirable objective. The Court
went on to 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.
The Court considers that recommendation LCR12005 is equally
appropriate to the present case and does not find evidence that
continuity of employment on site to the degree claimed by the
Union is now established custom and practice in the industry.
However, the Court is not satisfied that the Company has
demonstrated that it applied the "full consideration" clause with
the goodwill implied in the Recommendation No. 12005 and in the
E.R.O. At best, the Company has advanced reasons for filling some
of the nine positions with non-I.C.S workers but has given no
reasoning for the others. Having regard to the availability of a
probationary period and the absence of any stated reason for
employing new applicants in preference to former I.C.S. staff, the
Court concludes that the Company was concerned with establishing a
"principle"
The Court is aware of the strained relationship between the
Company and the Union which existed during the month prior to
taking over the contract which has led to this dispute and is of
the view that this case is a direct result. A reasonable working
relationship is essential to avoid a recurrence of the situation
and some compromise is essential to ensure the effective
fulfilling of contracts with the minimum disruption of workers.
The Court recommends that the parties commence realistic
discussions to this end.
With regard, to the present claim, the Court recommends that to
provide a more constructive climate for general discussions, the
Company should offer the first four vacancies that occur on the
contract to displaced I.C.S. workers.
~
Signed on behalf of the Labour Court
Kevin Heffernan
30th August, 1991 ---------------
J.F./U.S. Chairman