FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001 PARTIES : SAM HIRE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Preliminary hearing in relation to Union application under the Industrial Relations (Amendment) Act 2001.
BACKGROUND:
2. The company was founded in 1979 and has four depots in Dublin and a further 9 depots around the country employing 152 full time staff. It is a tool hire company and the majority of its business involves the hiring of equipment to the construction industry. The Company does not recognise any Trade Union. In 1997, the Heitons Group acquired the Company.
The Union claims that it was approached by a number of employees for the purpose of having access to representation by a registered Trade Union.
The dispute before the Court concerns a claim by the Union for (1) Rates of pay, (2) Hours of work, (3) Holiday entitlements, (4) Sick Pay scheme, (5) Pension scheme, (6) Grievance procedure, (7) Disciplinary procedures, (8) Bullying and harassment procedures, (9) Income continuance plan.
The Union states that on the 14th May, 2002, the case was referred to the Labour Relations Commission under the Code of Practice on Voluntary Dispute Resolution (S.I. No.145 of 2000). However, the Company chose not to participate in the process.
The Company states that it has been the practice over the last 24 years to communicate directly with staff on all aspects of their conditions of employment. It enjoys good relations with its staff which have been a key factor in the growth of the business. The Company believe that the vast majority of employees do not wish to join or to be represented by S.I.P.T.U. It claims that it was initially confused about the procedure regarding the Code of Practice on Voluntary Dispute Resolution.
DECISION:
This issue was referred to the Court under the provisions of Section 2(1) of the Industrial Relations (amendment) Act 2000.
The matter was referred by the Union on the basis that the employer “declined to involve the Labour Relations Commission in participating under (S.I. 145 of 2000)”. The Union has accordingly requested the Court to investigate the dispute in accordance with the powers given to it under Section 2 of the Act.
There is a conflict of evidence between the parties as to whether the provisions in Section 2(1) have been complied with and accordingly the Court in exercise of its powers under Section 3 of the Act decided to hold a preliminary hearing to determine whether or not the requirements specified in Section 2 had been met.
The provisions are as follows:
(a) it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute,
(b) the employer has failed to observe a provision of the Code of Practice on Voluntary Dispute Resolution under Section 42 of the Industrial Relations Act, 1990 (or any Code of Practice amending or replacing that Code), or has failed to observe such a provision in good faith,
(c) the Trade Union or the excepted body or the employees as the case may be, have not acted in a manner which, in the opinion of the Court has frustrated the employer in observing a provision of such Code of Practice, and
(d) the Trade Union or the excepted body or the employees as the case may be, have not had recourse to industrial action after the dispute in question was referred to the Commission in accordance with the provisions of such Code of Practice.
It is clear to the Court that conditions (a), (b), and (d) have all been complied with. The only question that remains is whether the employer has failed to observe a provision of the Code of Practice on Voluntary Dispute Resolution, or has failed to observe such a provision in good faith.
The Company case is that upon receiving correspondence from the Labour Relations Commission it wrote back to the Commission outlining its position. It states that it heard nothing more until it received a letter from the Labour Court regarding a date for a hearing. It would appear that the Advisory Officer formed the view that the Company was not prepared to take part in the process. Correspondence before the Court indicated that following receipt of the Company letter that the Advisory Officer wrote to the Union indicating that the Company had declined to participate at the Labour Relations Commission. However, this letter does not appear to have been copied to the Company.
The Company when questioned indicated that at no stage was it unwilling to enter into the Labour Relations Commission process and that the Industrial Relations Officer misunderstood its position. It was argued by a representative of the Company that when they received the letter from the Labour Court they realised their position, and on advice made it clear that they were prepared to enter into discussions. The Company was now requesting that the matter be referred back to the Labour Relations Commission.
The Union’s case is that the Company has done everything possible to frustrate its effort to resolve the issues disputed and that it quite clearly believed that it did not have to go anywhere to deal with the issues. The Union is adamant that a year has gone by and that the Company had done all in its power to frustrate progress and they felt that at this stage it would be inappropriate to refer the matter back to the Labour Relations Commission.
Findings:
The Court in addressing this particular dispute has to decide whether the provisions of Section 2 have been complied with and if so whether to go ahead and carry out an investigation under Section 2(1) of the Act.
Despite the Company’s statement that it was willing to engage in discussion with the Labour Relations Commission, the Court is satisfied that despite the efforts of the Labour Relations Commission the Company by its actions left the Advisory Officer with only one conclusion to make, that the Company did not want to engage in discussions and did fail to observe the provision of the Code of Practice on Voluntary Dispute Resolution. The Court is equally satisfied that the other provisions contained in Section 2(1) have been complied with.
The Court is of the view that the requirements of Section 2 have been complied with and accordingly in exercise of its powers under Section 2 (1) proposes to investigate the said dispute. The Court therefore proposes to proceed with the investigation and take written and verbal submissions from both parties on the issues as outlined in the Court hearing.
Signed on behalf of the Labour Court
Finbarr Flood
12th March, 2003______________________
LW/BRChairman
NOTE
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.