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 : GEORGE BREW & CO LTD (REPRESENTED BY SWEENEY MCGANN SOLICITORS) - AND - MANDATE DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
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. George Brew & Company Limited is a hardware store located in Kilrush, Co. Clare and employs fifteen staff.The dispute before the Court has arisen from a claim by the Union on behalf of its members in February, 2005. The Union was seeking that staff be given their Public Holiday entitlements in accordance with the Organisation of Working Time Act, 1997, and that Summer holidays could be taken during the months of July and August. An agreed code of practice on workplace bullying was also sought together with agreed grievance and disciplinary procedures. A sick pay scheme which would provide for six weeks paid sick leave after six months qualifying service was also sought. The issues were referred to the Advisory Service of the Labour Relations Commission in accordance with the provisions of the Code of Practice on Voluntary Dispute Resolution (S.I.No.76 of 2004). The Advisory Service hearings took place in April, 2005, and a number of issues remained unresolved as follows:
- 1. Public Holiday entitlements
2. Sick Pay Scheme
3. Agreed Grievance Procedures
4. Agreed Disciplinary Procedures
5. Dignity and Respect at Work Policy
The matter was referred 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. A Labour Court hearing took place on the 2nd November, 2005.
- 1. Public Holiday entitlements
RECOMMENDATION:
This dispute was referred to the Court pursuant to Section 2 (1) of the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004, (“the Acts”). The Court is satisfied that the conditions specified in Section 2 (1) (a) to (d) inclusive of the 2001 Act are fulfilled in this case and that the dispute is properly before the Court for investigation and recommendation.
The Court has taken careful account of the submissions of the parties in both their written and oral presentations at the hearing and subsequent further written submissions. Section 5 (2) of the 2001 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 matters under investigation and, where appropriate, its view as to the action which should be taken, having regard to the terms and conditions of employment, in the employment concerned. On behalf of its members in the Company the Union submitted claims to the Court concerning employees’ public holiday entitlements, the introduction of a Sick Pay Scheme and the Company’s internal Disciplinary Procedure and Grievance Procedure and the Company’s Dignity and Respect at Work Policy.
The Court recommends, as follows: -
(1)Public Holiday Entitlements: -
- The Company stated to the Court that the employees concerned are paid a consolidated rate of pay which gives them their public holiday entitlements by virtue of them being paid for and not working on public holidays but having to work an extra day in each week in which a public holiday falls for which they are paid an overtime rate thus affording them their public holiday entitlements. The Union disputed this on the bases that that system of payment does not afford the employees concerned their public holiday entitlements, the employees concerned did not agree to that system of payment and that that system of payment does not comply with the requirements of the Organisation of Working Time Act, 1997, concerning public holiday entitlements for employees.
The Court is not satisfied that the employees concerned agreed to the consolidated system of pay referred to nor does the Court accept that that consolidated system of pay complies with the Organisation of Working Time Act, 1997, with respect to the public holiday entitlements of the employees concerned and because it makes the entitlements conditional on working an extra day in each week concerned.
The Court therefore recommends that the consolidated system of pay referred to with respect to the employees concerned be discontinued and instead that the employees concerned be advised of their rates of pay per hour/week, be accorded their public holiday entitlements in accordance with the provisions of the Organisation of Working Time Act, 1997, in that behalf and be paid overtime for any additional hours or days of work in accordance with the norms for payment of such overtime. The Court further recommends that the pay slips of the employees concerned fully reflect the introduction of these changes in the future.
- The Union sought the introduction of a Sick Pay Scheme which the Company contested on the basis of cost and said that it would look at individual cases on a discretionary basis.
The Court recommends the introduction of a Sick Pay Scheme for employees after one year’s service to include provision for payment of sick pay of up to four weeks’ sick pay in any twelve-month period net of employees’ social welfare entitlements subject to appropriate medical certification procedures and the first three days of sick leave not qualifying for payment of sick pay under the Sick Pay Scheme.
- The Company and the Union disagreed on the matter of trade union representation with the Company offering this facility only at Stage Four (Dismissal) believing that it was not a requirement of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) at earlier stages. However, the Court notes that the Company is committed to complying with the Code of Practice and is willing to abide by the direction of the Court in this regard.
The Court recommends that the Company’s Disciplinary Procedure be amended to provide for representation by either a work colleague or a trade union representative, where an employee wishes to avail of such representation, at all Stages of the Disciplinary Procedure to accord and be consistent with the S.I. 146 of 2000.
- The Company’s Grievance Procedure includes an optional informal appeal process which an employee could avail of in conjunction with the Managing Director of the Company following completion of the First Stage of the Grievance Procedure. The Union disputed that this level of informal appeal was either necessary or appropriate having regard to the small and family-run nature of the business.
While the Court recommends that the optional informal procedure may be retained in the Grievance Procedure, it must also be consistent with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000). The Court notes that in that regard in the event of a grievance not being resolved internally the procedures provide for reference to the third party industrial relations machinery of the State.
- The Union disputed the Company’s proposed Policy on the bases that the appointment of an external investigator in appropriate circumstances must be jointly agreed by the Company and the Union and payment for this facility must be borne by the Company at an appropriate level.
The Court recommends that the referral of a complaint under the Company’s proposed Policy to an external investigator in appropriate circumstances must be jointly agreed by the Company and the Union having regard to both the nomination of the external investigator and their terms of reference and the Company must bear the cost of such referral at an appropriate level in accordance with the norms for the cost of such referrals and to comply and be consistent with the Code of Practice on Bullying and Harassment Procedures (S.I. 17 of 2002).
This Recommendation shall be implemented within one month of the date on which it is issued.
If there is any dispute in relation to the compatibility of the proposed procedures with the Codes of Practice the question may be processed under Section 43 (1) of the Industrial Relations Act 1990
Signed on behalf of the Labour Court
Caroline Jenkinson
21st December, 2005______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.