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 : GENESIS GROUP - AND - AMICUS/GPMU DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier 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 is involved in lithographical printing and employs 14 workers. The Union has a number of workers in the employment in membership and in November, 2004 wrote to the Company seeking a meeting to discuss recognition, its right to negotiate on behalf of its members and the application of the increases due under the Sustaining Progress Agreement (SP). The Company responded that it did not recognise the right of the Union to negotiate on behalf of workers in the employment. The Union sought to refer the issue to the Advisory Service of the Labour Relations Commission under the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I .76 of 2004). The Company declined an invitation to participate in this process. On the 22nd June, 2005 the Union made an application to the Labour Court under the Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004. A Court hearing was held on the 11th July, 2005.
UNION'S ARGUMENTS:
3. 1. While the Company is not legally obliged to recognise the Union it is unfair and unreasonable for it to withhold recognition. Members are entitled to have their concerns dealt with in a respectful and efficient manner through the Union of their choice.
2. The claimants have not received the pay increases due under the SP agreement. The vast majority of the companies in the printing industry have paid the terms of the agreement on time. The failure of the Company to pay these increases means that workers will fall further behind those in the industry doing similar work. Many companies who do not recognise trade unions pay the terms of national agreements.
3. If the Company is pleading inability to pay all or part of the increases due under the SP agreement there is provision for dealing with these circumstances under the agreement through direct negotiations.
COMPANY'S ARGUMENTS:
4. 1. The Company is facing significant difficulties in the market place and its financial situation is precarious. The printing industry is in serious difficulty due to high costs, low productivity, cheap imports, loss of computer printing, excess capacity and declining sales. The Company is losing money because of all those factors.
2. The workers in the employment are in receipt of pay rates which are very favourable in relation to competitors. The Company is paying more than 10% above the industry norm.
3. The Company is not in a position to make further pay increases due to its financial situation in the foreseeable future. The Company is continually striving to reduce costs and has had to effect redundancies and other measures in an effort to ensure its survival.
RECOMMENDATION:
Preliminary Issue.
At the commencement of the hearing the employer objected to the Court investigating this dispute because, it alleged, a document relied upon by the union in advancing its case had been "stolen" from the Company. The document in question is a memo sent by the Company to its employees explaining why it had refused to recognise a Union. It is clear to the Court that the document was freely given to the Union by one of its members who, in turn, had freely received it from the Company. The document is open and is not marked private and confidential.
This memo has little or no relevance to the subject matter of the dispute referred to the Court. The Court fails to understand the basis upon which the Company contends that the Union came by this document irregularly or how the furnishing of the document to the Court could affect its jurisdiction to investigate the dispute. Furthermore, this is not a matter which comes within the scope of section 2 (1) of the Industrial Relations Amendment Act, 2001 (as amended). Accordingly the Court is satisfied that this issue does not deprive the Court of jurisdiction to investigate this dispute.
Substantive Issues.
The issues in dispute have been identified by the Union involving;
1. Union Recognition
2. Payment of Sustaining Progress
With regard to the Union's first claim it is clear that what is sought is a recommendation from the Court that the employer engage with the Union in collective bargaining. Section 5 (2) of the Act precludes the Court from making a recommendation which provides for collective bargaining arrangements. Accordingly the Court does not recommend concession of that aspect of the Union's claim.
Section 5(1) does, however, require the Court to have regard to dispute resolution and disciplinary procedures in the employment concerned. In that regard the Court recommends that the employer put in place a disciplinary and grievance procedure which conforms with the general provisions of the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000) and in particular that appropriate provision be made for representation by an employee representative as defined by paragraph 4.4 of the Code.
Any dispute on this issue should be processed through the procedures provided for by section 43(1) o the Industrial Relations Act, 1990.
Payment of Sustaining Progress.
While a system of annual pay review was previously operated by the Company, that arrangement has now been discontinued and employees have not received any pay adjustment since 2003. The Company contend that the rates which it pays to its employees (and in particular to printers to whom this claim relates) are above those paid in comparable employment. However, neither the Company nor the Union supplied the Court with any information on rates of pay in similar companies. The Company also contended that its financial and commercial circumstances are such as to preclude it from paying any increase. Information concerning the financial position of the Company was provided to the Court and to the Union. The Union subsequently communicated with the Court setting out its observations on this information.
In the absence of any other reasonable system of pay adjustment, the Court is of the view that the Company should apply the terms of National Wage Agreements. The Court has, however, taken account of the financial circumstances of the Company, as disclosed in its accounts. It also notes that the Union has not provided any information in rebuttal of the Company's contention that its rates are in line with or in excess of industry norms.
In all the circumstances the Court recommends that the pay terms associated with the second part of Sustaining Progress should now be paid but from a current date. Accordingly the Court recommends that the 1st and 2nd phase of the agreement (total of 3%) be paid with effect from 1st July, 2005 and that the remaining phase be paid 6 months thereafter.
Implementation.
Save where it is otherwise provided, the terms of this recommendation should be implemented within one month from the date on which it is issued.
Signed on behalf of the Labour Court
Kevin Duffy
25th July, 2005______________________
todChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.