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 : EXEL TECHNOLOGY SUPPLY CHAIN SOLUTIONS IRELAND LTD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr O'Neill |
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. Exel Technology Supply Chain Solutions Ireland Ltd is a logistics Company providing warehouse, distribution and transportation solutions for technology based logistics companies, employing approximately 40 staff at the Apple site in Cork.
SIPTU referred the dispute to the Labour Relations Commission, a meeting took place on the 3rd February, 2005, items discussed were:
- Conformity to the General Provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000)
- Company policy re EWC's
- Shift premia, improvements with step down compensation
- Skill differentials.
- These were dealt with through the procedures outlined at Section 2 of the Enhanced Code of Practice on Voluntary Dispute Resolution (No. S.I. 76 of 2004).
- The issues before the Court have been distilled down following meetings on 3rd February, 2005 and 15th March, 2005 to:
(i) Rate of Pay
(ii) Consolidation of Shift Pay into overtime calculations
(iii) Sick Pay Scheme entitlements.
The dispute was referred to the Labour Court on the 29th March, 2005 in accordance with Section 2(1) of the Industrial Relations Amendment Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions ) Act, 2004. A Court hearing was held in Cork on the 18th May, 2005.
The following is the recommendation of the Court:
RECOMMENDATION:
Preliminary Objection
The employer raised a preliminary objection to the jurisdiction of the Court on grounds that the conditions specified at section 2(1)(a) of the Act have not been fulfilled.
In accordance with section 3 of the Act the Court determined to deal with the preliminary issue as part of the investigation.
Section 2(1)(a)
The employer contends that section 2(1)(a) requires, as a condition precedent to a Court investigation, that internal dispute procedures normally used by the parties have failed to resolve the dispute. They say that such a procedure exists in the Company. The Company explained that since February, 2003 "monthly communications meetings" are held to discuss all matters relating to employment including pay and non-pay terms and conditions of employment. Staff representatives who attend these meetings are democratically elected from each department. Therefore, the employer submits that this process is no different from that which occurs in a Company which engages with a trade union.
The employer pointed out that early in 2004, the staff representative group pursued a claim for the introduction of a sick pay scheme through the monthly communications meeting and a scheme was subsequently agreed and introduced.
The employer also contends that with the exception of the sick pay claim, the issues in dispute were not raised through their staff representative group nor had they utilised the Company's grievance procedures.
The Union contends that it is not the practice of the employer to engage in collective bargaining in respect of the workers who are members of the Union. It is of the view that the monthly communications meeting system is under the control of the employer and consequently employees have no appropriate means of processing claims with independent representation, no means of appeal and with no reference to third parties.
The relevant statutory provision is as follows:
2(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-
- "It is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute procedures (if any) normally used by the parties concerned have failed to resolve the dispute".
This section refers to procedures, which are "normally" used by the parties. The employer pointed to issues which have been resolved through the "monthly communications meeting" process. These comprised of the claims for the introduction of a sick pay scheme and changes in hours of work.
Having considered the submissions of the parties the Court is satisfied that the process described is not one which can be considered as an internal dispute resolution procedure normally used by the parties. No details have been submitted by the employer to show that disputes concerning terms and conditions of employment are normally or routinely dealt with through this process. Consequently, the Court finds that the Company's procedure is not a procedure of the type envisaged by section 2(1)(a) of the Act.
Conclusion on Preliminary Issue.
Having regard to the findings set out above the Court is satisfied that the conditions specified at section 2(1)(a) to 2(1)(d) of the Act are fulfilled in this case and that the dispute is properly before the Court for investigation and recommendation.
Substantive Issues.
Having considered the submissions of the parties the Court recommends as follows, in respect of each of the Union's claims.
Salary Structure.
The Union's claim is for negotiations on a salary structure. The Court notes that amendments to the Company's grievance and disciplinary procedures to bring it in line with Code of Practice on Grievance and Disciplinary Procedures (S.I.No. 146 of 2000) has been welcomed by the Union.
The Union submitted companies' rates of pay as comparators at the hearing. It subsequently agreed that these companies were not direct comparators.
In all the circumstances of this case, the Court recommends that the claim for increases in pay for the general operatives should be processed in accordance with new amended grievance and dispute procedure.
Consolidation of Shift Premium into Overtime Payment.
The Court recommends:
(a) where overtime is worked as an extension of the working day - shift premium should be consolidated into overtime payment,
and
(b) where overtime is worked on any of the worker's rest days - shift premium should not be consolidated into overtime pay.
Sick Pay
The Court notes that the Company introduced a new sick pay scheme in December, 2004, which will be reviewed after 12 months. The Court is of the view that this position is reasonable in the circumstances and endorses the Company's intention to review the scheme in December 2005.
The Court so recommends.
Signed on behalf of the Labour Court
25th July, 2005______________________
JB/DHCaroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.