FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001 PARTIES : BANTA GLOBAL TURNKEY (REPRESENTED BY ARTHUR COX) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Preliminary hearing in Relation to Union Application under the Industrial Relations (Amendment) Act, 2001.
BACKGROUND:
2. The issue before the Court relates to the Union's application under Section 2(1) of the Industrial Relations Amendment Act, 2001, to have it's members grievances on
(1) National Wage Agreements, (2) Service Pay, (3) Annual Leave, (4) Grievance and Disciplinary Procedures, (5) Sick Pay Scheme, (6) Bonus, (7) Bullying and Harassment, (8) Victimisation and Harassment of members as a result of their Union membership, resolved through the arrangements provide for under the Act.
The Union claim that it has tried to access the Company's internal procedures but the Company has not responded. In April, 2003 the Union referred the issues to the Advisory Service of the Labour Relations Commission under the Voluntary Dispute Resolution Process (SI. No.145 of 2000). However, the Company chose not to participate.
The Company states that it is not their practice to engage in collective bargaining negotiations with the employees in the category which the Union purports to represent in this claim, namely, certain salaried staff comprising of supervisors, technicians and some administrative staff. The Company does not recognise SIPTU for collective bargaining purposes for those categories of staff.
The Company claim that the internal dispute resolution procedures normally used have not failed to resolve the dispute. The Company state that they have not been used at all by the employees concerned to resolve the matters at issue. The Company has a well established Grievance Procedure and a policy on Bullying and Harassment which is given to all supervisors.
The dispute was referred to the Labour Court by the Union on the 24th July, 2003, in accordance with Section 2 of the Industrial Relations (Amendment) Act, 2001. A Labour Court hearing took place on the 6th of April, 2004.
DECISION:
1. This dispute was referred to the Court by SIPTU pursuant to Section 2(1) of the Industrial Relations Act, 2001.
2. It is the Union’s position that the Labour Court can investigate these disputes as the statutory pre-conditions have been met.
3. Section 2 of the Act of 2001 states as follows: -
- “(1) Notwithstanding anything contained in the Industrial Relations Acts, 1946 to 1990, at the request of a trade union or excepted body, the Court may investigate a trade dispute where the Court is satisfied that:
(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 provisions 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.”
Union’s Case
1. It is not the practice of the employer to engage in collective bargaining negotiations with the APT Branch. The Union’s initial correspondence with the Company on 14th February called for discussions between the parties in order to resolve their members grievances. However, following further correspondence sent to the Company on March 6th and April 3rd 2003 and no response forthcoming it was obvious that the management in Banta Global were unwilling to engage in collective bargaining on the identified issues.
- The Union at this juncture decided not to pursue collective bargaining but to pursue its members’ specific issues through the Voluntary Dispute Resolution Code SI 145 of 2000. One of the major contributing factors to the Union taking this decision was the very fact that one specific staff grievance related to an appeal of alleged bullying and harassment complaint against a senior member of management.
- The APT branch on behalf of the following grades, Engineering, Production Supervisors, IT Technicians, and QC Personnel has never held negotiations with this employer to determine salary levels or salary increases. A separate branch of SIPTU represents Operator grades and has a collective agreement with Banta Global.
- It was not the Union’s intention to pursue collective bargaining at this point but to have their members’ specific grievances investigated by the Court. As there has already been some time delay in these issues being addressed the Union on behalf of its members were very anxious to have these specific issues investigated by the Court.
- Any creative efforts by this Company’s legal team to cloud the facts of this case will be an attempt to avoid investigation by the Court and is merely another attempt by Banta Global to frustrate, delay and prevent these serious issues from being investigated by the Court.
2. The employer has in fact failed to observe a provision of the Code of Practice in the Voluntary Dispute Resolution, or has failed to observe such provision in good faith.
3. The Trade Union or the employees concerned have not acted in a manner which has frustrated the employer in observing a provision of the Code of Practice on Voluntary Dispute Resolution.
4. The Trade Union or the employees have not had recourse to industrial action after the dispute was referred to the Labour Relations Commission in accordance with the Code of Practice on Voluntary Dispute Resolution.
The Union believes that the Court should proceed to hear all its members’ specific grievances and the Court should then make a recommendation on each issue.
Company’s Case
It is submitted on behalf of the Company that each of the necessary statutory pre-conditions under which the Court can carry out an investigation into a dispute have not been met and in those circumstances the Court must decline jurisdiction to deal with this matter under the 2001 Act.
Under section 2(1)(a) it is a pre-condition on an investigation by the Court that it is not the practice of the employer to engage in collective bargainingandthat internal dispute resolution procedures normally used by the parties have failed to resolve the dispute.
It is conceded that it is not the practice of the respondent to engage in collective bargaining negotiations with the employees in the category, which SIPTU purports to represent in this claim, namely certain salaried staff comprising of supervisors, technicians and some administrative staff. SIPTU is not recognised for collective bargaining purposes for those categories of employees.
However, the internal dispute resolution procedures normally used have not failed to resolve the dispute. They have not been used at all by employees concerned to resolve the matters at issue. In this context reference is made to the respondent’s well established Grievance Procedure.
Bullying and Harassment Complaint
It is assumed by the Company that this is a reference to a specific complaint of bullying and harassment. It was open to the complainant to refer the matter under the Grievance Procedure to a Rights Commissioner under paragraph 4.5 of the Procedures but she did not do so.
Victimisation and Harassment of Members as a result of their Union membership
Since SIPTU’s application was filed with the Court, an individual complaint of this type has been lodged and investigated under the Respondents Grievance Procedure. The complaint was not upheld at the first stage of the procedure and the complainant has not, thus far, sought to take the complaint to the next stage under the respondent’s procedure. Instead he has placed the matter in the hands of his solicitor who has threatened separate legal proceedings.
Each of these matters could have been raised under the Grievance Procedure. However, none of them (with the exception of the bullying and harassment complaint and the victimisation and harassment complaint) were raised under the Grievance Procedure and in neither harassment case has the Grievance Procedure been exhausted.
It is especially noteworthy that employees in the categories relevant to this case have availed of the Grievance Procedure in the past to raise grievances with regard to rates of pay and with regard to pay for working on Sundays. Examples of the use of Grievance Procedure include the following:
It is submitted that on this ground alone –“the internal dispute resolution procedures (if any) normally used by the parties concerned have”notfailed to resolve the dispute – the Court should decline jurisdiction in this case. As a matter of public policy the Court should accept jurisdiction only when it is satisfied that the internal procedures normally used have been exhausted and have failed to resolve the dispute. The internal dispute resolution procedures have not failed to resolve this dispute in that the employees concerned have either failed to seek resolution of matters through such procedures or in respect of two complaints, have not exhausted the procedures.
Code of Practice:
It is submitted that the respondent cannot be said to have failed to observe a provision of the Code of Practice in circumstances where the employees concerned have never raised the matters of concern internally with their employer.
Findings
The Court in this preliminary hearing in relation to the Union application under the Industrial Relation’s (Amendment / Act 2001) must be satisfied that each of the requirements under Section 2 of the Act have been met, in order that the Court can carry out an investigation.
Section 2(1)(A) states: -
- 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.
- 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.
The legislation, as written, does not allow the Court to carry out an investigation in circumstances where the employer clearly falls in to the category of an employer who engages in collective bargaining.
In relation to the other limb of this section, on internal disputes resolution procedures, it would appear that such procedures exist and have been used by this Group in the past.
The Union indicated that it had decided not to use these procedures, for reasons outlined but the Court, in applying the legislation must give consideration as to whether the procedures have failed to resolve the dispute.
In this case as the Union has indicated that it decided not to use the procedures, it cannot be argued that the procedures have failed to resolve the dispute.
Taking into account the above, the Court finds that the conditions required under Section 2(1)(A) have not been met and it therefore cannot proceed to investigate this dispute.
Signed on behalf of the Labour Court
Finbarr Flood
31st May, 2004______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.