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 : CLEARSTREAM TECHNOLOGIES LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGee Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
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 Company is a manufacturer of medical devices based in Enniscorthy Co.Wexford. The issues in dispute which concern a number of workers who are union members are as follows:
Payment for attending Third Party Investigations.
Sick pay application to one worker.
Mechanism of progressing the Grievance and Disciplinary Procedure.
The Company does not recognise the Union for the purposes of collective bargaining. There have been two previous referrals by the parties to the Labour Court (LCR 17897 and DIR 042 refer). The issues in dispute were referred to the Advisory Service of the Labour Relations Commission under the provisions of the enhanced Code of Practice on Voluntary Dispute Resolution ( S.I. No.76 of 2004). Both parties participated in this procedure but agreement was not reached. The dispute was referred to the Labour Court in accordance with Section 2 the Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004. A Court hearing was held on the 16th June, 2005.
UNION'S ARGUMENTS:
3. 1.Payment for attending Third Party Investigations.When workers decided to attend Third Party meetings, the Company released them but without pay. To date two representatives have attended the Labour Court and meetings with the Advisory Service of the LRC. The employees work in an environment where Collective Bargaining is refused. In all Unionised Employments where Employees Representatives attend Third Party meetings they are paid. The claimants should not be treated less favourably than workers where Collective Bargaining is established.
2.Sick Pay. As part of LCR 17897, the Court recommended and the Company accepted that the Sick Pay Scheme be restored with effect from 1st August, 2004. At this time the claimant was out sick and was not in receipt of any payment from the Company. As of the 1st August, she should be paid Sick Pay as per the scheme, regardless of the fact that she was out on unpaid leave at the time of the restoration.
3.Grievance and Disciplinary Procedure.As part of LCR 17897, the Court recommended and the Company accepted that the Grievance Procedure as presented to the Court would be used. Since then employees have tried to use it but to no avail as the Company frustrates the process to keep workers at Step A and not allowing them progress their grievance. The fact that in this case the Company refuse to accept that the grievance is the employee's and that it his/her decision whether or not it is resolved or progressed, is the core of the problem. It is the employee who decides when to move to Step B, C, etc. not the Employer, via a supervisor or manager. The Union is seeking a clear time frame to apply as a fall back i.e.
Stage A ---two weeks
Stage B ---two weeks
Stage C ---two weeks
These time frames should be automatic if not jointly agreed as resolved.
COMPANY'S ARGUMENTS:
4. 1.Payment for attending Third Party Investigations. The Company does not recognise the Union for collective bargaining purposes and therefore does not pay shop stewards for attendance at LRC /Labour Court meetings as it feels that this would be recognition for their role in a collective bargaining environment. Should a worker pursue an individual grievance correctly through the Company Problem Resolution Procedure (PRP) and should this grievance progress to Step C or beyond the Company would be willing to ensure the worker is not financially disadvantaged. In the case of this issue before the Court presently and the LRC previously, the matter was never raised at any point through the Company's procedures internally.
2.Sick Pay. In relation to the application of the Sick Pay Scheme to one worker (which she raised through the PRP) the Company explained the situation in detail to the worker and she confirmed that she understood and was satisfied and that the matter was closed. Subsequently the worker sought to raise a number of issues in relation to her sick pay payment. The worker's supervisor made note of these issues and said she would revert to the worker who then raised a number of new issues. A further response was promised by Management. Subsequently the worker indicated she was unhappy with the delay and stated that the issue was being referred to the Labour Court. The supervisor advised the worker she should be using Step B of the PRP. The supervisor advised the worker she had responses to all the issues raised previously and requested to speak to the worker alone. The employee declined the invitation. By letter dated 11th March, 2005 Management gave a letter to the worker outlining what the responses would have been should she have chosen to attend this meeting.
3.Grievance and Disciplinary Procedure.The Company is committed to correctly applying the agreed procedures in relation to any issue concerning health, welfare or employment conditions of workers. Management is adamant that all grievances should be raised and processed within Company policies and procedures as agreed by all parties in the previous Labour Court Determination. The Company is committed to the processing of grievances internally within the available resources, conscious that the issues will go externally should the matter not be dealt with in a fair and transparent manner. The Company must be given the opportunity to deal with any issue raised by a worker. The Company believes the Union is working around the PRP by moving directly to Step C (which allows for representation) without the issues being processed internally.
RECOMMENDATION:
The purpose of the Industrial Relations (Amendment) Act, 2001 as defined in its Long Title, is as
" An Act to make further and better provision for promoting harmonious relations between workers and employees (et seq)".
The Court in Recommendation No. 17897, dated 12th July, 2004, under "Procedure for Resolving Disputes", recommended
" When differences arise between the Company and the Employees in relation to their terms and conditions of employment, such issues should be processed through the Grievance Procedure referred to above and if unresolved should be processed through a Rights Commissioner or the Court as appropriate. No form of strike, industrial action or interference with normal working should be engaged in by either party until the procedures are resorted to and exhausted".
The Grievance Procedure referred to was to conform fully with the provisions of S.I. 146 of 2000.
The above was confirmed by the Court in Determination No. DIR 042.
The Court is concerned that there seems to be no real effort by the parties to resolve their differences in a harmonious manner, as intended by the Act. In consequence the instant matters before the Court have not been processed, as directed by the Court, through the normal dispute resolution machinery provided for in the Industrial Relations Acts, but have been again brought to the Court under legislation which sets down guidelines and is clearly not appropriate for dealing with matters of this kind.
The Court accordingly recommends that the matters brought before it in this case be processed in accordance with S.I. 146 of 2000 and in accordance with LCR 17897 i.e. locally and then if unresolved via the normal dispute resolution methods. These matters are, by nature, individual grievances. The Court has already identified how such grievances should be dealt with. Should the matters in dispute remain unresolved following the above process, the Court will, on the application of either party and without a further hearing issue definitive recommendations.
Signed on behalf of the Labour Court
Raymond McGee
29th July, 2005______________________
todDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.