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 : QUINN CEMENT (REPRESENTED BY JOHN HORGAN) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Preliminary hearing in relation to Union application under the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.
BACKGROUND:
2. The Union claims that in October, 2004, it took the vast majority of the non-clerical staff employed in the Ballyconnell plant into membership. It wrote to the Company on the 20th of October, 2004, in relation to a number of issues including the bonus scheme, pay and conditions of employment, the introduction of a sick pay agreement, tax issues and overtime rates. The Company declined to meet the Union which then referred the case to the Advisory Service of the Labour Relations Commission. The Advisory Service wrote to the Company on the 12th of November, 2004, inviting it to engage in the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76/2004). The Company declined the invitation.
The Union referred its case to the Labour Court on the 1st of December, 2004, in accordance with the Industrial Relations (Amendment ) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004. A Labour Court hearing took place on the 27th January, 2005.
Decision:
By application dated 30th November, 2004, SIPTU requested an investigation by the Labour Court of a trade dispute pursuant to Section 2(1) of the Industrial Relations Act, 2001, as amended.
The subject matters of the dispute are as follows: -
1. Proposed changes to the bonus scheme
2. Pay and conditions of employment
3. Introduction of sick pay scheme
4. Taxation issues arising from relocation of business
5. Overtime rates.
Preliminary Issue
The employerargued that the Court does not have jurisdiction to investigate the dispute, as the statutory preconditions stipulated in the Act have not been fulfilled.
1.Is it 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 this trade dispute?
- The employer argued that it does in fact engage in collective bargaining with the group of workers who are engaged in this dispute. Typically the employer will put forward proposals designed to improve efficiencies and earnings of employees, usually an incentive based productivity type arrangement. This is discussed with the employees concerned in groups or individually if they wish.
The proposal is then amended in light of employees’ comments. It is then introduced by agreement only, and those who do not wish to participate are not forced to do so. The employer cited the definition of collective bargaining found in Commission of Inquiry on Industrial Relations 1981.
The employer argued that “the only statutory definition of a Collective Agreement is to be found in the Anti Discrimination (Pay) Act 1974, under Section 1 of the Act it is described as “an agreement relating to terms and conditions of employment made between parties who are or represent employers and parties who are or represent employees but this is a definition which is valued only for the purposes of the Act”.
The employer also argued that it felt that there was no requirement for trade union involvement for there to be a collective agreement
The Union arguedthat there was no formal structure or independent body representative of workers within the Company which could meet the Company on equal terms to allow workers to resolve grievances. The management meet with the supervisors regularly but this is merely a consultative process following which the supervisors are the medium of communication with the workers.
The supervisors have no mandate from workers to negotiate on their behalf and this forum is not an independent body representative of workers. It was established by the employers who determined the parameters within which it operates. It has none of the essential characteristics of collective bargaining negotiations and is primarily a creature of the employer. It is therefore patently not the practice of the employer to engage in any form of collective bargaining negotiations with its workers as a group
The employer argued that there was a comprehensive and fair procedure for dealing with all employee grievances and that this should have been used by the employees. The procedure had effectively been used to deal with bonus scheme issues in the past.
The Union argued that there was no formal process for dealing with collective grievances, that it is impossible for members to resolve any collective disputes with the Company, be it seeking a right to be represented by a Trade Union, the introduction of a 39-hour week or the introduction of a sick pay scheme.
The employer was invited by the LRC, at the instigation of the Union, to participate in the procedure of the Code of Practice on Voluntary Dispute resolution and declined the invitation.
The Union contended therefore, that the provision of Section 2(1)(b) have been fulfilled.
3.Has the employer failed to observe a provision of the Code of Practice?This was not disputed by either party. The employer did not observe the Code of Practice.
4.Has the Trade Union/Excepted body acted in a manner, which has frustrated the employer in observing a provision of the Code of Practice?
It was the position of both parties that it had not.
5.Has the Trade Union/Excepted Body engaged in any industrial action after the date on which the dispute has been referred to the Labour Relations Commission?
It was the position of both parties that it had not.
Court Findings:
The sole issues remaining in dispute between the parties are under Section 2(1) of the Act.
Section 2(1)(a) - First Limb
- “It is not the practice of the employer to engage in collective bargaining negotiations”
Section 2(1)(a) – Second Limb
"and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute".
This limb requires the Court to be satisfied that internal procedures normally availed of by the parties concerned have failed to resolve the dispute. The Union contends that there are no such procedures in place in this employment.
(i) In the context of the dispute, "parties" can only be deemed to refer to theparties to the trade dispute,these being the Company and the grade, group or category of workers represented by the Union.
(ii) While the Company claims that there are internal procedures which have been used before to resolve grievances, and has given examples of how these procedures have previously operated, it is clear to the Court that these areindividual grievance proceduresand not ones "normally availed of by the parties concerned" on any sort of joint or regular basis.
Given (i) and (ii) above, and given the fact also that no procedures have succeeded in resolving the matters between the parties, the Court is satisfied that the requirements under Section 2(1)(a) - Second Limb have been fulfilled.
As all other aspects of Section 2(1) are not in dispute, on the preliminary issue the Court finds that the preconditions laid down in Section 2(1) have been fulfilled, and that the case is, therefore, properly before the Court. The Court will, therefore, proceed to investigate the substantive case.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
3rd March, 2005______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.