FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BOURKE'S FUNERAL DIRECTORS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Non-compliance to terms on minimum staffing levels.
BACKGROUND:
2. The dispute concerns the Union's claim that the Company is not in compliance with the Dublin Undertakers Agreement of 1970. The Union wrote to the Company on the 30th July, 2004 in relation to the minimum staffing levels per yard which is three. The Union claimed that only one full-time and one part-time driver are employed. The Company claimed that it employed three full time drivers and rejected the Union's claim. The Union sought to refer the issue to the Labour Relations Commission but the Company objected to such a referral. Subsequently the Union sought the assistance of the Labour Relations Commission Advisory Service under the provisions of the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76 of 2004) but the Company was unwilling to engage under this process. On the 5th May, 2005 the Union referred a complaint to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Court hearing was held on the 19th July, 2005.
UNION'S ARGUMENTS:
3. 1. The Dublin Undertaking Agreement is still valid and is in operation with all other companies who are signatories to the Agreement complying with its terms and conditions. The Union wrote to the Company and referred to the staff levels. It submitted a list of names and members available for work which is a long established custom and practice. The Company has the ultimate decision as to whether or not to employ any or none of the workers from this list.
2. The Union does not accept that the Company is in compliance with the Agreement in relation to staffing levels and at no stage did the Company state that the Agreement was defunct. The undermining of the Agreement by the Company in its failure to honour the terms of the Agreement on staffing levels affects the standard of service to clients.
3. The Union has developed a good and sound industrial relations practice with all companies who operate the Agreement and up to recently that relationship existed with this Company. The change in approach by the Company in refusing to engage in negotiations can only have a negative effect on the industry and morale of staff.
COMPANY'S ARGUMENTS:
4. 1. The Company employs a total of four staff with one receptionist/office based employee and three drivers, including the owner/manager, who also acts as an embalmer. While the Company operated in a sector that has in the past been unionised and while it has in the past dealt with the Union, the undertaking sector has undergone considerable change over the years. In that time discussion or contact with the Union has diminished to the point of non existence and at present the number of workers active in the Union or in membership is negligible.
2. The Agreement is no longer of any relevance in the year 2005. The conditions referred to in it no longer apply to any funeral director let alone Bourke's. The Agreement had a finishing date of 21st October, 1971. It was not formally renewed, reviewed or substantially revisited. While the parties to the original Agreement expressed the intention of registering the Agreement with the Labour Court, this did not occur. The Agreement is not one of the 45 Employment Agreements currently registered with the Court and has no legal weight or enforceable authority.
3. The Union is seeking to compel the Company, against its wishes and with no business or commercial requirement to employ a worker who is, to quote the Union's letter of 18th August, 2004 "on our books". The Union's course of action is, in effect, an attempt to enforce a post entry closed shop in what for all intents and purposes is no longer a Unionised Company.
RECOMMENDATION:
The Court is satisfied that the agreement relied upon by the Union expired in 1971 and has never been formally renewed or updated. While individual employers in the sector may still observe some of its provisions by way of local agreement or custom and practice, it cannot be held that this binds the sector as a whole.
In these circumstances the Court cannot accept the Union's contention that the 1970 agreement is still extant as an industry wide agreement. Accordingly the Court does not recommend concession of the Union's claim.
Signed on behalf of the Labour Court
27th July, 2005______________________
todKevin Duffy
Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.