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 LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier 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. Clearstream Technologies manufactures and sells medical devices for use in cardiovascular interventions. The Company was originally formed in 1996 as AngioDynamics Ltd, a subsidiary of an American Company and was subsequently purchased by the Management team in July 2000.
The issues before the Court are as follows:-
(1) Compensation for lay-off.
(2) Compensation for loss of shift.
The Union are claiming that, in terms of the lay-off, adequate notice was not given nor was the Department of Social and Family Affairs contacted by the employer, hence workers were subject to delays in receiving their Social Welfare entitlements. The claim is for three days pay in lieu of notice. In terms of compensation for loss of shift, the Union are seeking compensation of thirteen weeks shift premia for the loss of shift and further compensation if the loss of shift is permanent.
On a preliminary issue, the Company do not feel that these issues are properly before the Court on the basis that the agreed Problem Resolution Policy has not been utilised by the parties. The Company also submitted that the package of pay and conditions of employment are in line with appropriate standards.
As regards the claims for compensation for lay-off and loss of shift, the Company maintain that employees were constantly informed as to the manufacturing position within the Company and the need for lay offs and changes to the shift patterns to ensure the company remained viable.
The Advisory, Development and Research Service of the Labour Relations Commission referred the matter to the Court under Section 2(1) of the Industrial Relations (Amendment Act), 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004 . A Labour Court hearing took place on the 12th April,2005.
UNION'S ARGUMENTS:
3. 1.Workers were put on short time without adequate notice being given to them. The Company also failed to contact the Department of Social and Family Affairs which delayed the payment of Social Welfare entitlements.
2. Short-time working was introduced to victimise workers for remaining loyal to their Union and to give no effect to the Labour Court pay award which was to be implemented on 1st October 2004.
3.As regards changes to the shift pattern, it is long established practise that shift retention compensation be paid and also compensation be paid for permanent loss of shift if appropriate.
COMPANY'S ARGUMENTS:
4. 1. The policy of giving 2 weeks notice of a change in shift was communicated to all employees in May, 2003, and has been applied since that date. The issue of compensation has never been raised internally for discussion at local level.
2. The contract of employment clearly reflects that where it is necessary to change the shift patterns, consultation will take place with employees to accommodate personal circumstances while also taking into account the Company's operational needs.
3. Prior to the introduction of short time/lay off, there were repeated communications regarding the problems within the Company. Short term finance had to be arranged and the tight management of which left the Company with no alternative.
4. Short timeworking arrangements were introduced equally for employees with consultation to facilitate their personal requirements. The Company is committed to giving as much notice as possible in such circumstances but in this case, as funds were not available to pay for unproductive hours, management were forced to implement short time working with immediate effect.
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).
This dispute has been referred to the Court 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).
The Court has taken careful account of the submissions of the parties in their written and oral presentations.
The Company submitted that the claims before the LRC and the Court had not initially been raised internally through the Company’s Problem Resolution Policy and consequently it did not have the opportunity to deal with and solve the matters internally before recourse to external involvement. The Company stated that it was
- “committed to the processing of grievances internally within the available resources, conscious that the issue will go externally should the matter not be dealt with in a fair and transparent manner”.
The Union expressed their frustration at the internal procedures as it found that it was unable to progress beyond the first step of the procedures.
The Court in Recommendation No 17897 and Determination No. DIR042 stated:-
- “Where differences arise between the Company and the employees in relation to their terms and conditions of employment, such issues should be processed through the[internal]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 Union stated to the Court that it had referred difficulties with the Company’s Problem Resolution Policy to the Labour Relations Commission under the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76 of 2004), and a meeting was scheduled for 29th April 2005.
The Court is of the view that the Company should be given the opportunity to deal with the claims now before the Court in the context of the Company’s grievance procedures/Problem Resolution Policy, when the difficulties with that procedure are resolved. If the claims are not resolved within a period of four weeks from the date of this Recommendation, the Court will issue a definitive Recommendation.
The Court recommends accordingly.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th May, 2005______________________
AH/MB.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.