LCR18137

FULL RECOMMENDATION

CD/05/5

RECOMMENDATIONNO.LCR18137

(CC411)

INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001,
AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004

PARTIES :

ANALOG DEVICES
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr Nash

SUBJECT:
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 major manufacturer in the computer industry employing approximately 1300 workers in Limerick. The Union has collective bargaining rights for hourly paid workers (a minority of the overall workforce). The Union has recruited a number of workers from the Technician Grade and has sought representation arrangements for this group from the Company. The Company refused, and the Union referred the case to the Advisory Service on pay and individual grievance and disciplinary matters, under S.I. 76 of 2004.

The Union maintains that the Company operated a pay freeze for the Technicians for a 3 year period during 2001-2003, resulting in a substantial erosion of pay vis a vis National Wage Agreements increases for that period. The Union are seeking that this erosion be made good by the payment of National Wage Agreements increases for the period in question.

The Company claims that they are not in a position to consider the Union's claim, arguing that:

The pay freeze was imposed for serious business cost reasons,
It applied to all non hourly paid employees of which the Technicians is only one group,
The Company has traditionally paid in excess of National Pay Agreements norms,
The Company is under serious cost pressures currently, with the dollar devaluation being a serious factor in this regard.

The parties engaged the voluntary procedure but agreement was not reached. The dispute was referred to the Labour Court on the 5th January, 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 Limerick on the 23rd February, 2005.

RECOMMENDATION:

This dispute was referred to the Court pursuant to Section 2(1) of the Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004 (the Acts), following the failure of the parties to reach agreement in relation to the matters at issue at the Labour Relations Commission under the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76 of 2004).

As a preliminary issue the Company contended that the Court lacked jurisdiction to investigate this dispute on the grounds the Union has not produced evidence to support its contention that it represents Fab Technicians employed by the Company, and therefore was not representative of a ‘grade, group or category’.

The Union says that it represents 55 Fab Technicians. The Union offered to provide the Court, on a confidential basis, with details concerning the number and identity of employees of the Company who have joined the Union. The Court believes that the requirements of natural justice and fair procedure preclude it from accepting information from one party, which is not available to the other party for comment.

In this case the Court accepts the assurances of the Union that it is representative of employees of the Company who are in dispute with their employer in connection with the issues forming the subject matter of this referral.

The Court is satisfied that this matter is not one of the requirements covered by Section 2(1) of the Act.

The Court is satisfied that the conditions specified at Section 2(1)(a) to 2(1)(d) of the Acts were fulfilled in this case and that the dispute was properly before the Court for investigation and recommendation.

The Court has taken careful account of the submissions of the parties in their written and oral presentations.Section 5(2) of the Act provides that a recommendation made by the Court shall not provide for arrangements for collective bargaining. Subject only to that restriction the Court is required to give its opinion on the matter under investigation and, where appropriate, its view as to the action, which should be taken, having regard to the terms and conditions of employment, in the employment concerned.

The Company’s second contention is that the Court, must have regard to the conditions of employment which it provides, and that when viewed in their totality, are not out of line with appropriate standards.

The Company therefore contends that the intervention of the Court under section 2(1) of the Industrial Relations (Amendment) Act 2001, as amended, is not warranted. In support of its contention, the Company pointed out that between the period January 2000 and February 2005, the pay of its employees has increased by an average cumulative increase of 43.81% as against cumulative increases of 30.21% provided by national pay agreements over the same period. The Company submitted that the Technicians have fared significantly better than the average worker under a national pay agreement by dealing directly with the Company.

This issue does not relate to the Court’s ability to investigate the dispute under Section 2(1), but is a matter, which should be taken into consideration when the Court having conducted its investigation, decides whether it should issue a recommendation under Section 5(1). However, in ease of the parties, the Court will consider this aspect of the Company’s submission first, since, if it succeeds on this point, it may be unnecessary to consider in detail the other issues raised in the case.

The Industrial Relations (Amendment) Act 2001, as amended, provides a significant addition to the powers of the Court in industrial relations disputes. In considering the nature of the new powers given to it, and the circumstances in which it is appropriate to invoke them, the Court has stated in recommendation LCR17745 (Bank of Ireland and IBOA) as follows:

“The powers which are given to the Court by the Act are a far reaching departure from the normal approach to the resolution of industrial relations disputes. They provided, in effect, that the Court may arbitrate in a dispute on the unilateral application of one party and in circumstances where the other party may not consent to the process. It seems to the Court that, having regard to the voluntary nature of our industrial relations system, such an intervention is only appropriate where it is necessary in order to provide protection to workers whose terms and conditions of employment, when viewed in their totality, are significantly out of line with appropriate standards”.

As the Court has previously pointed out, such protection is only required and the intervention of the Court justified, where it can be demonstrated that pay or conditions of employment are out of line with accepted standards -GE Healthcare and SIPTU, Recommendation LCR No 18013.In that context regard should be had to terms and conditions applicable to similar categories of workers in analogous employments in which there is collective bargaining.

The Court has been provided with information on the terms and conditions of employment and the Grievance and Discipline Procedures, which applies, to the Fab Technicians. This procedure precludes trade union representation on matters concerning individual employee’s remuneration. The Company expressed an apparent unwillingness to utilise the dispute resolution machinery of the State Labour Relations Commission, the Rights Commissioner service and the Court, as appropriate.

When the terms of their employment are viewed in their totality, the Court is the view that the restrictive use of the grievance and disciplinary procedure, places these terms out of line with acceptable standards in analogous employments, in which representation in respect of individual disputes is allowed and the full dispute resolution machinery availed of. Consequently, in respect of this contention the Court is satisfied that its intervention is justified and it is therefore appropriate to issue substantive recommendations, under section 5(1) of the Act, on the claims under investigation.

Utilising the provisions of SI. 76 of 2004 the Union submitted two claims to the Labour Relations Commission.

The Court recommends the following on the claims submitted by the Union on behalf of its members in the Company: -

Grievance and Discipline Procedures

The Court notes that the Company is in consultation with the Union on redesigning its Grievance and Discipline Procedures for hourly paid employees. However, while it is prepared to update the procedures for Fab Technicians to reflect changes brought about by S.I. 146 it was not prepared to concede trade union representation on matters concerning an individual employee’s remuneration related issues. It is the Company’s view that setting remuneration for an individual employee is by its very nature a collective review of their structured performance management pay system. It also argued that the S.I. 146 ‘was not a definitive piece of legislation’ and therefore, it was not within the Court’s remit to decree on the contents of the Company’s Grievance and Discipline Procedure. In response, the Union stated that if such matters did not form part of the procedures, it would be powerless to discuss any meaningful matters concerning individual members with the Company and pointed out that Fab Technicians remuneration is determined by the annual performance of individual employees.

Section 42 of the Industrial Relations Act, 1990 provides that “a code of practice shall be admissible in evidence”and any provision of the code, which appears to be relevant"shall be taken into account". The Court is satisfied that S.I. 146 is a definitive guide as to what constitutes good practice and is clearly cognisable by the Court.

The Court can see no logical reason to exclude matters relating to remuneration from the Grievance and Discipline Procedure. The Court recommends that the employershould put in place a disciplinary and grievance procedure, which conforms to the general provisions of the Code of Practice on Grievance, and Disciplinary Procedures (S.I. 146 of 2000) and which deals with all grievance, and disciplinary matters on an individual basis. Consistent with the Code, the Company's procedure should provide for an employee to be represented by a colleague or where an employee wishes to avail of a trade union representative, then the Company should provide for such representation in processing individual grievances and disciplinary matters. The procedure should also provide for the full utilisation of the normal dispute resolution machinery of the State, including the reference of disputes to Conciliation, the Rights Commissioner Service and the Court, as appropriate.

In the event of a complaint alleging an infringement of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000), such complaint can be addressed pursuant to section 43(2) of the Industrial Relations Act 1990.

Pay

The Union submitted a claim for an increase in the rates of pay for Fab Technician of between 10% and 12% due to the Company’s non-compliance with the full terms of PPF and Sustaining Progress. The Court is satisfied that the average pay increases granted to the Fab Technicians during the periods covered by PPF and Sustaining Progress are in excess of the terms of these national wage agreements and therefore does not recommend in favour of the claim.

Conclusion

The Court cannot and therefore, does not recommend that the parties engage in collective bargaining in relation to terms and conditions of employment and nothing contained in this recommendation should be construed as providing for collective bargaining.

Signed on behalf of the Labour Court

Caroline Jenkinson
16th_March, 2005______________________
JBDeputy Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.