FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001, AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004 PARTIES : CREAGH TRANSPORT LTD (REPRESENTED BY IBEC) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Union application under the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.
BACKGROUND:
2. The Company was founded in 1999 and operates as a national and international transport company. It has two locations, one, its head office in Silvermines, Co. Tipperary and two, a customer's premises in Raheen, Limerick. It currently employs 57 workers, comprising of management, clerical staff, mechanics and drivers.
The workers sought membership of SIPTU in February 2004. Following consultation with its members, the Union forwarded the issues to the Advisory Service of the Labour Relations Commission under S.I. No. 76 of 2004, the Voluntary Code for Dispute Resolution. The Advisory Service response of the 5th July clarified that as the Company were not willing to participate in the procedure the Advisory Service would be unable to assist them. The Union then referred the dispute to the Labour Court for investigation under Section 2(1) of the Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.
The Union's issues before the Court are as follows:
- Non payment of the Programmes for Prosperity and Fairness (PPF) and Sustaining Programme (SP).
2. Non application of Statutory Entitlements to holidays
3. Disciplinary and Grievance Procedure in accordance with S.I. No. 146 of 2000.
RECOMMENDATION:
This dispute was referred to the Court pursuant to Section 2 (1) of the Industrial Relations (Amendment) Act, 2001, as amended (the Act). The Court is satisfied that the conditions specified at Section 2(1)(a) to 2(1)(d) of the Act are fulfilled in this case and that the dispute is properly before the Court for investigation and recommendation.
There are three issues forming the subject matter of the dispute namely:
1. Non application of pay increases provided for under The Programme for Prosperity and Fairness and Sustaining Progress.
2. Non application of Statutory Entitlements to Holidays.
3. Grievance and Disciplinary Procedures.
The Union sought to have these issues processed through the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. No. 76 of 2004). However the employer declined the invitation of the Advisory Service of the LRC to participate in those procedures.
Section 5(2) of the Act provides that a recommendation made by the Court shall not provide for arrangements for collective bargaining. Subject only to that restriction the Court is required to give its opinion on the matter under investigation and, where appropriate, its view as to the action which should be taken having regard to the terms and conditions of employment, and to the dispute resolution and disciplinary procedures, in the employment concerned.
The Court has carefully considered the submissions of the parties and recommends as follows in respect of the Union's claims. 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.
Pay.
- The Company has no fixed or formal system of reviewing the pay of its employees. It is, however, accepted that employees have not received any increases in pay for between four and five years. The Company claim that the economic and commercial circumstances of the business are such that they have been unable to pay any increases over those years. Nonetheless it contends that the rates paid to its employees are competitive relative to other similar enterprises.
The Company submitted that employees do not have a statutory right to national wage agreement increases. It further argued that since those agreements provide mechanisms for collective bargaining, the Court is precluded by section 5(2) of the Act from recommending their adoption by the parties.
In the Courts view the present pay arrangements, as they were described to the Court, are lacking in transparency and it is impossible to accurately compute the gross pay of individual employees for the purpose of external comparison. It is clear, however, that the rates have remained static over the period covered by the pay agreements associated with PPF and Sustaining Progress. In the Courts view the Company’s failure to provide for any increases in pay over such an extended period is unsustainable and, notwithstanding the undoubted economic difficulties of the Company, cannot be justified.
Whilst the increases provided by national partnership agreements are not an automatic statutory or contractual entitlement, in the absence of any other established or agreed method of pay determination, they do represent an appropriate reference point for establishing a fair and reasonable level of pay adjustment. Moreover, the Court does not accept that it is precluded from recommending increases in line with those provided by national agreements in this case. Any recommendation made by the Court to that effect can be implemented without the necessity for collective bargaining at the level of the enterprise.
Taking account of all relevant considerations the Court recommends that the Company issue each employee with a statement in writing particularising their gross rate of basic pay and other allowances in the nature of pay. The rate of pay so identified should then be adjusted by reference to the increases provided for by the pay agreements associated with the PPF and Sustaining Progress. For the purpose of applying phasing arrangements similar to those prescribed by those agreements the commencement date should be 1st October 2000.
The rate of pay should be increased by the cumulative percentage provided by these agreements to date (24%) within one month from the date of this recommendation. Retrospection from November, 2003 (the date on which the employees first made a claim) should be paid in December 2004 . In future, pay should be adjusted by reference to the increases provided by national agreements subject to the right of the Company to plead inability to pay through the mechanisms provided by the agreement should it chose to invoke those mechanisms.
- In the Court’s view the procedures provided by the Industrial Relations (Amendment) Act, 2001 are intended to deal with situations in which claims of an industrial relations nature cannot otherwise be satisfactorily addressed. The Union’s claim in respect of holiday pay relates to an alleged infringement of the Organisation of Working Time Act, 1997. Sections 27 and 28 of that Act prescribe a statutory procedure through which such claims can be adjudicated upon and redress ordered where an infringement is found to have occurred. The Court does not consider it appropriate to supplant the arbitral role of the Rights Commissioners under the 1997 Act by processing claims within their jurisdiction through the procedures of the 2001 Act.
Accordingly, the Court recommends that the claims at issue be referred to a Rights Commissioner pursuant to section 27 of the Organisation of Working Time Act, 1997.
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. No. 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.
This procedure should be put in place within one month from the date of this recommendation. Any submission that the Union wishes to make with regard to its content 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.
- Save where it is otherwise provided the recommendations herein should be implemented within one month of the date of this recommendation.
Signed on behalf of the Labour Court
Kevin Duffy
18th August, 2004______________________
JBChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.