LCR18019

FULL RECOMMENDATION

CD/04/579

RECOMMENDATIONNO.LCR18019

(CC389)

INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001,
AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004

PARTIES :

RPS GROUP LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

TECHNICAL, ENGINEERING AND ELECTRICAL UNION

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Ms N� Mhurchu

SUBJECT:
1. Referral from the Labour Relations Commission under the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.

BACKGROUND:

2. The Union represents approximately 40 electricians and mechanical craft persons employed by RPS Group Limited on the Intel site. The workers are currently paid individual rates of pay which are increased on the basis of individual appraisals. The Union are seeking the application of the appropriate nationally agreed rates (i.e. Electrical Contracting Industry NJIC rates and the Construction Industry REA rates) on the basis that their members are covered by these agreements. The Union are seeking:

€18.98 per hour for all craft workers who have completed their apprenticeship more than 5 years ago and 90% pro rata for non craft workers.

The Company maintains that the workers are not covered by the above agreements. They further contend that even if these workers were covered, the Company would not be in a position to increase rates in 2004 because it is tied into a rigid budget with Intel for 2004. The Company is in the process of re-tendering for this contract for 2005. They can give no commitments to the Union at this time. The Company argue that the rates paid to the workers in question are not dissimilar from those set out in the agreements.

As no resolution could be found, the Union referred the issue to the Labour Court for an investigation of the dispute under the Industrial Relations (Amendment ) Act, 2001. A Labour Court hearing took place on the 11th October, 2004.

RECOMMENDATION:

Preliminary Objection to Jurisdiction of the Court.
The Company raised two preliminary points in relation to the jurisdiction of the Court to investigate the claims submitted. Firstly, it contends that the reality of the claim is that the workers associated with it are encompassed by the Registered Employment Agreement for the Electrical Contracting Industry and /or the Registered Employment Agreement for the Construction Industry. On this account, the Company contends, the complaint should have been taken pursuant to section 32 of the Industrial Relations Act 1946 rather that Section 2(1) of the Industrial Relations (Amendment) Act 2001, as amended (the Act). Secondly, the Company submitted that the applicant Union had engaged in industrial action against it since the dispute was referred to the LRC in accordance with the Code of Practice on Voluntary Dispute resolution, in consequence of which the Court is precluded from investing the dispute by virtue of section 2(1)(d) of the Act.

Having considered the submissions of the parties the Court finds as follows on these preliminary points.

Appropriateness of the Referral under Section 2(1) of the Act.
The Court is satisfied that the claim before it is not that the Company is in contravention of a registered agreement. Rather, it is a claim for parity of pay and conditions with those applicable to comparable grades covered by the registered agreements. Such a claim could not be processed under section 32 of the 1946 Act.
- Industrial Action.
  It is accepted that in the period after the present dispute was referred to the Commission and before the hearing before the Court the Union wrote to the Company giving notice of its intention to engage in industrial action in furtherance of a demand that a dismissed employee be reinstated. This dispute was resolved between the parties before the action of which notice was given commenced.
  
  On these facts the Union contends that the subject matter of the dispute referred to by the Company is unrelated to the issues now before the Court and that, in any event, no industrial action ensued. For its part the Company contended that section 2(1)(d) preludes any form of industrial action and not just industrial action in furtherance of the dispute referred to the Court. It was further submitted that the giving of notice was intended to coerce the Company into meeting a demand by the Union and as such came within the definition of industrial action contained at section 8 of the Industrial Relations Act 1990.

In considering these submissions the Court has contrasted the wording contained at section 2(1)(d) of the Act with that contained at section 8 (1), which deals with the affect of industrial action taken after a Court investigation has commenced. Section 2(1)(d) provides that the Court may investigate a dispute where it is satisfied that:

- “[T]he 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.”

In relation to the affects of industrial action occurring after the Court has commenced its investigation of a dispute, section 8 (1) provides:

- Subject to subsection (2), the Court shall cease its investigation or review under section 6 and withdraw any recommendation where, either at the request of the employer or on its own initiative, the Court has satisfied itself that industrial actionin relation to the dispute that is the subject of an investigationhas taken place. [Emphases added]

The words underlined do not appear in section 2(1)(d) and it is to be assumed that this omission was deliberate. Consequently the Court cannot interpret this provision by importing words which the Oireachtas chose not to insert. The plain and ordinary meaning of this provision is that where the Union or the employees have had recourse to industrial action, on any matter, in the period between a dispute being referred to the LRC under the Code of Practice and before the commencement of a Court investigation, the dispute cannot be investigated by the Court under the Act of 2001.

The Court cannot, however, accept the Company’s submission that the giving of notice of industrial action is itself industrial action. The giving of notice is a step in the process of taking industrial action which crystallises when the action notified commences. Since the action notified in this case never took place the restriction imposed on the Court by section 2(1)(d) is not operative.

In these circumstances the Court is satisfied that the conditions precedent contained at section 2 of the Act are fulfilled and the Court is required to proceed to an investigation of the dispute.

The Substantive Issue.
The Company is a multi-disciplinary consultancy firm the principal business of which is the provision of planning, environmental electrical and engineering services to its clients. This type of service is also known as facilities maintenance. The Company employs electrical and mechanical craft workers and non-craft technicians on the Intel site at Lexilip Co Kildare. It is to this site only that this claim relates. The Union claims that the work in which its members are engaged is identical to that carried out by electricians employed by electrical contractors or by engineering craft workers employed by mechanical engineering contractors. The Union further claims that its members are interchangeable with another contractor on the Intel site who is covered by the REA for the Electrical Contracting Industry and who pays the rate claimed. The Company claims that there are significant differences in the work preformed by both groups.

In the course of its investigation, the Court sought to visit the site in question for the purpose of conducting an inspection of the work at issue. However the Company could not arrange for such an inspection.

The Company is one of a number of enterprises offering similar services in competition with each other. It is submitted by the Union, and the Court accepts, that they also compete with electrical and mechanical engineering contractors, who were the traditional providers of the type of service which facilities maintenance contractors now offer.

Based on the submissions of the parties and the information provided by them, the Court accepts that there are strong similarities between the work undertaken by those associated with this claim and that performed by craft workers employed by electrical contractors and mechanical engineering contractors. Nonetheless the Company is not covered by either of the Registered Employment Agreement for the Electrical Contracting Industry or the MECA agreement. The Court cannot see how, in the context of the current referral, it could use its powers under section 5 of the Act of 2001 to effectively extend the scope of either agreement.

In the course of its investigation of this dispute the Court held bilateral meetings with both parties in an attempt to find a mutually acceptable basis on which this dispute could be resolved. In the course of these meetings it became apparent that the absence of arrangements for standardising terms and conditions of employment in this sector, unlike the position in both the electrical contracting and the mechanical engineering sectors, is problematical for both sides.

The Union takes the view that in the absence of any other alternative they can only pursue claims against individual companies as the circumstances in which they can do so arise. The Company point out that they cannot unilaterally increase rates without undermining their competitive position relevant to other service providers with which it competes for business. The Court accepts that there is validity in both positions.

In issuing a recommendation under section 5 of the Act the Court cannot recommend the introduction of any form of collective bargaining arrangements and nothing in this recommendation should be construed as purporting to do so. Nonetheless both parties agreed with the Court that a resolution of the current dispute should best be found at a sectoral level rather than at the level of individual employments. Should the parties identify a basis upon which this can be brought about the Court will offer such facilities or assistance as it can.

Rates of Pay.
The current rates payable by the Company range from €15. 24 to €18.54 in the case of mechanical craft workers, €15.64 to €18.54 in the case of electrical craft workers and from €12. 82 to €14.79 in the case of non-craft workers. In addition the Company apply other benefits which they quantify in value as equal to €1 per hour. The Union’s claim, based on the REA rates, is for €18.98 for craft workers and for €17.08 for non-craft workers. The Union also point out that the REA and the MECA agreements provide for benefits at least equal to those provided by the Company.

Taking account of all the circumstances of this case the Court recommends that the following rates should apply with effect from 1st January 2005.

Craft Workers

Qualified but less than one year post apprenticeship €16.20 per hour
1 year post apprenticeship experience €16.40 per hour
2 years post apprenticeship experience €16.60 per hour
3 years post apprenticeship experience €16.60 per hour

4 years post apprenticeship experience €16.80 per hour

5 or more years post apprenticeship experience €17.20 per hour

Non-Craft €14.62(85% of the craft rate)

These rates should be regarded as minimum rates and where higher rates are currently being paid they should continue on a red-circled basis.

In the exceptional circumstances of this case, and without prejudice or commitment, the Court would, on the application of either party made on or after 1st September 2005, review these rates in the light of any developments in pay involving employers in the maintenance facilities sector generally.

Personal Assessments.
Any disputes concerning personal assessments for pay purposes should be processed through the Company’s grievance procedure. The Court notes that the Company are prepared to facilitate individual representation by a trade Union in the use of the grievance procedure and the reference of dispute to relevant statutory third party adjudication.

Industrial Peace.
Any dispute or difference arising between the parties should be processed through the appropriate internal procedures and if unresolved should be referred to the relevant service of the Labour Relations Commission, the EAT or the Court as appropriate. No form of strike, lock-out, industrial or coercive action should be taken by either until these procedures have been resorted to and exhausted.

Signed on behalf of the Labour Court

Kevin Duffy
23rd_November, 2004______________________
JBChairman

NOTE

Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.