FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : BAXTER HEALTHCARE S.A (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Owens Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. Selection process for representation on European Forum.
BACKGROUND:
2. Baxter Healthcare develops, manufactures, distributes, markets and sells a wide range of medical products and services in the cardiovascular, renal, biotech and intravenous medication areas.
The Company has operations in seventeen European countries, comprising research and development, manufacturing, sales and marketing and distribution. It employs approximately 10,000 people in these countries.
Baxter established its Irish operations in 1972 and employs in excess of 1,000 people at its four locations in Ireland. It operates two manufacturing facilities at Castlebar and Swinford and exports its products from these facilities to Europe, the U.S. and Japan. The Union represents approximately 700 employees while 200 employees are non-unionised.
In 1994, the European Community passed Council Directive 94/45EC on the establishment of a European Works Council. Baxter International established a "Baxter European Forum" consisting of representatives of management and employees in each of its European locations to facilitate transnational dialogue and consultation. The Forum meets the requirements of the European Works Council Directive.
Employees of Baxter's Irish operations are entitled to two representatives on the Forum. However, the Union is in dispute with the Company in relation to the method by which the two employee representatives are to be chosen.
The Company wants to have one nominee representing the Union's members and one nominee to represent the non-union members.
The Union rejected the Company's proposal and claims that the representatives should be elected by a ballot of the total workforce.
As no agreement was possible between the parties, the dispute was referred to the Conciliation Service of the Labour Relations Commission. A conciliation conference was held on the 27th of August, 1997 but no agreement was reached. The dispute was referred to the Labour Court on the 17th of September, 1997 under Section 26(1) of the Industrial Relations Act, 1990. The Court investigated the dispute on the 4th March,1998.
UNION'S ARGUMENTS:
3. 1. As far as the Union is concerned the manner of selection of employee representatives should not be dictated by management. The selection process must be agreed by all sides.
2. There should be a ballot of all the workforce to select the representatives to fill the two positions.
3. The Union's members have indicated, through their representatives, that the tried and trusted formula for determining the representatives of employees should be the property of the employees.
COMPANY'S ARGUMENTS:
4. 1. The Company has no objection to the representatives being selected by ballot provided that there are two separate ballots, one for Union members and the other for non-union members.
2. Non-union employees have an equal right to representation despite being a minority of the total workforce.
3. The Baxter European Forum Agreement is in place as a Pre-Directive Agreement and has been formally registered with the relevant European authorities.
4. The Forum has already held its first meeting which was attended by the Union's representative and also by a non-union representative.
RECOMMENDATION:
Having considered the submissions from both parties and taking into account the further information given at the oral hearing the Court has concluded as follows:-
(a) The agreement, the operation of which is now in dispute was made within the period allowed by the Act for the conclusion of in-company arrangements (up to 22nd September, 1996).
(b) Section 21 of the Act does not therefore apply to the dispute.
(c) The agreement provides that employee representatives to the European Forum are to be selected “according to arrangements to be agreed between the local representatives of management and employees”.
(d) The essence of the dispute to be addressed by the Court is the method of selecting the employees' representatives (2 in number).
The Court notes that had the Act applied the method of election to the Forum would be governed by the First Schedule to the Act. This provides for a single election conducted by proportional representation with all employees employed on the day of the election being entitled to vote.
The Court considers it reasonable to recommend the adoption of this procedure despite the reservation expressed by the Company as to the outcome of such an election. To assist the parties the Court further recommends that an independent outsider be appointed to supervise the ballot and that the names of the candidates and their location be the only information given in the ballot papers. In the event of the two places being filled by representatives of either groups involved in this dispute the substitute delegate place should be filled by the employee from the other groups who polled the highest number of votes.
Finally the Court further recommends that 6 months prior to the second election the parties meet to review the situation and make any further local arrangements that are considered desirable.
The Court so recommends.
Signed on behalf of the Labour Court
Evelyn Owens
2nd April, 1998______________________
L.W./D.T.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Larry Wisely, Court Secretary.