FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FACILITIES MANAGEMENT AND ISS IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's recommendation IR17637/03/GF
BACKGROUND:
2. The dispute concerns two workers affected by a change of cleaning contractor at the FÁS site, Ballyfermot. The workers have been employed as contract cleaners for sixteen years at this site. During this period the contract has changed hands on five occasions and the employees have retained their positions. with all terms and conditions of employment on each occasion.The Union maintains that Facilities Management as a Company refused to recognise members rights to remain in continuous employment during the change of contractor.
The Union are seeking that it's members retain their employment status on the FÁS site in Ballyfermot.
The Company rejects the claim on the basis that the employees were unwilling to comply with Company rules.
The matter was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 16th December,2003, as follows:
- " I wish to thank the parties for accepting the invitation to attend at the LRC on both occasions. Unfortunately we were unable to be of any assistance due to the failure of talks between the parties. At this stage I must urge the parties to resume negotiations in connection with a transfer undertakings"
On the 19th December, 2003, the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 7th January, 2004.
3. 1.The workers have been involved in five previous changes during their sixteen years service and it is unacceptable that on this occasion their right to continuous service should be in question.
2.The workers should retain their employment status at the site concerned.
FACILITIES MANAGEMENT ARGUMENTS:
4. 1.The workers were not willing to cooperate with shift changes and failed to complete application forms when requested.
2.The workers are not employees of Facilities Management and therefore are not the responsibility of the Company.
DECISION:
This decision refers to Facilities Management and should dispose of the dispute with ISS Ireland.
The Court is satisfied that the employer acted unreasonably in relation to the claimants in failing to adequately engage with the Union to discuss the proposed change in working hours and in failing to utilise the process proposed by the Union in seeking to resolve that issue. It is noted that the claimants subsequently agreed to change their hours and, in the Court's view, if there had been initial engagement between the parties this result could have been achieved earlier.
In the circumstances of this case the Court determines that the Union's claim that the workers concerned continue in their employment be conceded and that the claimants be taken on by the Company on that basis and placed on the pay role with effect from the date of this decision. They should work evening shift and should comply with such the Company's normal requirements with regard to training and the provision of personal details. Accordingly the appeal is allowed.
Signed on behalf of the Labour Court
Kevin Duffy
8th January 2004______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jo O'Connor, Court Secretary.