FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001 PARTIES : IRISH EXPRESS CARGO (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Union application under the Industrial Relations (Amendment) Act, 2001.
BACKGROUND:
2. Irish Express Cargo (IEC) is a third party logistics supplier with operations in Europe and the U.S. The company was established in 1974 and has traditionally been a non-union company. It currently employs nine hundred and six people across three main locations in Ireland. Its customer base is mainly the non-union high tech sector.
The dispute before the Court concerns a claim by the Union for (1) Payment of the full terms of the Programme for Prosperity and Fairness (PPF) and (2) Representation for its members in disciplinary and grievance cases as provided for by the Code of Practice on Grievance and Disciplinary Procedures.
The Company argues that it has not followed wage agreements in the past and operates its own wage review system, based on benchmarking its rates against its competitors. It claims that its rates of pay are competitive for the region. The Company states that S.I. No.145 of 2000 sets out a Code of Practice in Grievance and Disciplinary Procedures and that it has co-operated fully with all aspects of the Voluntary Code of Practice.
RECOMMENDATION:
This matter came before the Court pursuant to the Industrial Relations (Amendment) Act 2001. The issues in dispute between the parties had previously been referred to the Labour Relations Commission under the Code of Practice on Voluntary Dispute Resolution (S.I. 145 of 2000).
In these circumstances the Court must first consider if the dispute can be investigated having regard to Section 2(1)(b) of the Act. This provides that the Court may not investigate a dispute unless it is satisfied that the employer has failed to observe a provision of the Code of Practice or failed to observe such a provision in good faith. Whilst it is clear that the employer did not refuse to participate in the process provided by the Code, it is contended by the Union that they failed do so in good faith.
The requirements of good faith, in this context, are not easily defined. Whilst a mere failure to reach agreement cannot be equated with a lack of good faith, it appears to the Court that parties are required to make a constructive effort to address and resolve the issues referred by the other side and to do so with expedition.
The Court has taken account of the manner in which the company responded at the LRC and has come to the conclusion that it did not respond with sufficient commitment to finding a resolution to the issues in dispute or with sufficient expedition. Accordingly, the Court is satisfied that the company did not observe the provisions of the Code in good faith for the purposes of Section 2(1)(b) of the Act. The Court is further satisfied that all of the other conditions referred to in Section 2(1) of the Act are fulfilled and that there is no impediment to the Court investigating this dispute.
The Court has taken careful account of the submissions of the parties in their written and oral presentations. It has also had regard to the entirety of labour relations practices engaged in by the employer, as they were outlined to the Court in the course of the investigation. The Court has also had regard to the labour relations practices engaged in by associated employers, as it is required to do by Section 2(2) of the Act.
The Court has also taken account of relevant Codes of Practice made pursuant to Section 42 of the Industrial Relations Act 1990, as it is required to do by Section 42(4) of that Act.
The following are the recommendations of the Court.
Pay
The Court recommends that the parties adhere to the pay terms of the PPF. However the agreement does provide a mechanism by which an employer can plead inability to pay. This involves, in the first instance, seeking to convince the Union that the economic circumstances of the employment are such that the full terms cannot be paid without undermining competitiveness and employment.
The information so far provided is not sufficient to allow the Union to make an evaluation of the company’s financial position or to respond to the arguments made by the company in support of its plea of inability to pay. The Court recommends that the company should provide the Union with such information as it may reasonably require to properly evaluate the current position. This process should be completed by 1st June 2003, by which date the parties should report back to the Court. The Court will then issue a further recommendation in light of the information then to hand.
As an interim measure the Court recommends that the company should pay an increase of 4% on account with effect from 1st January 2003. This should be in addition to the increase already paid from that date.
Disciplinary and Grievance Procedures
The employer should put in place a disciplinary and grievance procedure which conforms to the general provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000). Consistent with the code, the company procedure should provide for trade union representation in processing individual grievances and disciplinary matters, where an employee wishes to avail of such representation. The procedure should also provide for the full utilisation of the normal dispute resolution machinery of the State, including the reference of disputes to conciliation, the Rights Commissioner service and the Court, as appropriate. Similar procedures should be put in place to cover complaints of bullying and harassment.
Any submission that the Union wishes to make with regard to the content of these procedures should be taken into consideration. If there is any dispute in relation to the compatibility of the proposed procedures with the Code of Practice, the question may be processed under Section 43 of the Industrial Relations Act 1990.
Procedures for Resolving Disputes
The Court cannot and does not recommend that the parties engage in collective bargaining in relation to terms and conditions of employment and nothing contained in this recommendation should be construed as providing for collective bargaining.
Where differences arise between the company and employees in relation to their terms and conditions of employment, such issues should be processed through the grievance procedure referred to above and if unresolved should be processed through a Rights Commissioner or the Court as appropriate. No form of strike, industrial action or interference with normal working should be engaged in by either party until the procedures are resorted to and exhausted.
Signed on behalf of the Labour Court
Kevin Duffy
15th April, 2003______________________
LW/LWDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.