LCR18344

Preliminary Issue.

By way of a preliminary issue Counsel for the employer submitted that the Court lacked jurisdiction to investigate the dispute as the conditions specified at section 2 of the Act have not been met. The Court decided to exercise its discretion under section 3 of the Act to determine the preliminary as part of the substantive investigation.

Section 2 of the Act provides 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 –
  • (a) 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 resolution procedures (if any) normally used by the parties concerned have failed to resolve this dispute,

    (b) either –

    (i) the employer has failed to observe-

    • • (I) a provision of the Code of Practice on Voluntary Dispute Resolution under Section 42 of the Industrial Relations Act 1990 specifying the period of time for the doing of any thing (or such a provision of any code of practice amending or replacing that code), or

        (II) any agreement by the parties extending that period of time,

      or
    (ii) the dispute having been referred to the Commission for resolution in accordance with the provisions of such code, no further efforts on the part of the Commission will, in the opinion of the Commission, advance the resolution of the dispute and the Court has received a report from the Commission to that effect,]

    (c) the trade union or the excepted body or the employees, as the case may be, have not acted in a manner which, in the opinion of the Court, has frustrated the employer in observing a provision of such code of practice, and

    (d) the trade union or the excepted body or the employees, as the case may be, have not had recourse to industrial action after the dispute in question was referred to the Commission in accordance with the provisions of such code of practice.

  (2) In the course of an investigation under subsection (1) the Court shall have regard to the entirety of labour relations practices in the employment concerned including labour relations practices engaged in by the employer or an associated employer in another employment including an employment outside the State.

The employer furthermore contends that the process envisaged in by the Act of 1977 constitutes a procedure for resolving disputes which has not failed to resolve the dispute referred for investigation by the Court. In that regard Counsel for the employer told the Court that it remains willing to continue in negotiations with the Union on the matters in dispute and it cannot therefore be fairly claimed that the procedures have failed to resolve the dispute.

The employer also submitted that the requirements of Section 2(1)(b) have not been met. It was pointed out that the employer did engaged with the LRC in relation to the dispute and remains committed to further engagement with a view to resolving outstanding issues. Finally the employer contended that the condition specified at Section 2(1)(c) of the Act has not been met.

The employer further claims that a group of employees frustrated the LRC process by making entirely unreasonable demands and had no intention of seeking to resolve the issues in dispute with the assistance of the advisory officer.

The Union submitted that all of the conditions specified at section 2(1) were met and that the Court had jurisdiction to investigate the dispute.

Determination of the Preliminary Issues.

For the reasons that follow the Court is satisfied that the conditions specified at section 2(1) of the Act have been met and that it has jurisdiction to investigate the dispute.

Section 2(1)(a)

There are two limbs to this paragraph of the subsection. Firstly the Court must be 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. Secondly, the Court must be satisfied that internal disputes procedures, if any, normally used by the parties concerned have failed to resolve the dispute.

The employer contends that the process of consultation in which it is required to participate under Section 9 of the Protection of Employment Act 1977 constitute both collective bargaining negotiations for the purpose of the first limb of the subsection and an internal disputes procedure for the purposes of the second limb.

Section 9 of the Act of 1977 does not expressly require an employer to engage in consultation or negotiations on monitory compensation or other ex-gratia benefits of the type claimed by the Union in this referral. It is further clear to the Court that in the course of such consultations which have thus far taken place there has been no negotiations on the amount of redundancy compensation or other terms on offer. Rather the employer used the process to explain rather than to negotiate on what was available.

Moreover, Section 2(1)(a) refers in plain language to it not being thepracticeof the employer to engage in collective bargaining negotiations and to a procedurenormallyused. In the context in which they are used both words connote something which regularly or routinely occurs. In the instant case it is accepted that the employer has never engaged in collective bargaining negotiations heretofore. While they may be prepared to engage in a process of negotiations in respect of issues arising in the instant referral this could not offset or supplant the clear language of the statute which gives the Court jurisdiction where it is not thepracticeof the employer to engage in such negotiations. Further, the procedures envisaged by the Protection of Employment Act 1977 are clearly not an internal dispute resolution procedurenormallyused by the parties, within the meaning of the second limb of section 2(1)(a) of the Act.

The employer also submitted that it has an individual grievance procedure which has not been resorted to in an attempt to resolve the dispute. What is required by the second limb of section 2(1)(a) is that the parties used established internal disputes resolution procedures (if any) before invoking the jurisdiction of the Court. There is a substantial difference between an individual grievance procedure and a disputes resolution procedure.

A grievance procedure is typically used to deal with issues of an individual character while a disputes procedure is intended for use in processing collective dispute (for a analysis of the Court’s reasoning on this point see Recommendation LCR17919 –Radio Kerry and Mandate) There is nothing before the Court to indicate that the internal grievance procedure (the details of which were not furnished to the Court) was ever used to process disputes of a collective nature such as those raised in this referral.

For the above reasons the Court is the conditions specified in section 2(1)(a) have been met.

Section 2(1)(b).

The employer contends that it is prepared and anxious to continue discussions with the LRC through the procedures provided for by the Enhanced Code of Practice on Dispute Resolution.It claims that in these circumstances the conditions specified at Section 2(1)(b) have not been met.

In the course of the hearing the Court informed the parties that it had, in accordance with normal practice, received a report from the LRC in relation to the instant dispute in which the Commission recited its opinion that no further effort on its part would advance the resolution of the dispute. The employer takes issue with this opinion. It is clear from Section 2(1)(b)(iii) that it is the opinion of the Commission which is determinative and not that of the parties. Accordingly the Court is satisfied that the requirement of paragraph (b) have been met.

Section 2(1)(c)

Here the employer contends that the actions of the Union and a small number of its members have been specifically designed to frustrate the employer in observing a provision of the code. In effect the employer complained that the stance adopted by the Union in processing its claims was so unreasonable as to frustrate it in seeking to address those claims.

The Court is satisfied that Section 2(1)(c) contemplates conduct which frustrates an employer is seeking to comply with the provisions of the code of practice in relation to such matters as time limits. It does not refer to the negotiating stance taken by the parties in their engagement under the Code.

There is no evidence that the employer was frustrated in observing any provision of the Code. According the requirements of Section 2(1)(c ) have been fulfilled.

Appropriateness of Addressing the Claim for Enhanced Redundancy Payments.

Counsel for the employer submitted that since redundancy payments are prescribed by statute it is inappropriate for the Court to make recommendations on enhanced redundancy payments. It was submitted that in the context of the instant referral the recommendation of the Court could lead to a legally enforceable determination on an issue where the obligations of the employer are already prescribed by law.

This point does not arises from any provision of Section 2(1) of the Act and is not a matter to be decided as a preliminary issue pursuant to Section 3 of the Act. Nonetheless the Court took the view that it should consider the submissions of Counsel on this point.

It is clear from the introductory sentence of Section 2(1) that the Court is authorised to investigate a trade dispute where the conditions set out in that sections are met. Section 5 of the Act authorises the Court to make a recommendation giving its opinion on how the issues forming the subject matter of the dispute should be resolved. In this case the employees are entitled to statutory redundancy payments under the Redundancy Payments Acts 1967-2003. They are claiming, in addition, certain ex-grata payments to which they have no legal entitlement. These claims are the subject matter of the trade dispute which has been referred to the Court for investigation and recommendation.

There are many conditions of employment the minimum terms of which are prescribed by law. A dispute concerning a claim for improvements on these statutory terms is nonetheless a valid trade dispute. Such disputes are regularly investigated by the Court and recommended upon. In the case of an investigation under the Act of 2001 the only restriction placed on the Courts authority to issue recommendations is that it cannot seek to provide for collective bargaining. If the Oireachtas had intended to further restrict the recommendatory powers of the Court it would have so provided in the statute.

The payment of ex-gratia redundancy lump-sums is commonplace in Ireland. The Court is satisfied that the Union is entitled to pursue a claim for such a payment and that the procedures of the Act are available to it in so doing.

Conclusion on Preliminary Issues

For all of the reasons set out above the Court is satisfied that the conditions specified in section 2 of the Act have been met. Accordingly it has jurisdiction to investigate the substantive dispute.

Substantive Issues

The Court has carefully considered the submissions of the parties in relation to the Union’s claims. Having taken full account of all the circumstances of the case the Court recommends as follows in relation to the Union’s claims:

1. Cost of living salary increase.

• The Court is conscious of the financial and commercial circumstances of the company. Having taken full account of those circumstances the Court recommends that salaries be increased by 2.5% with retrospective effect to 1st July 2005. This increase should be implemented, with retrospection, within one month of the date of this recommendation, except that in the case of staff who are leaving the amount due should be paid at the time their employment terminates.

• The Court recommends that all employees being made redundant receive five weeks pay per year of service inclusive of statutory redundancy, where applicable. The amount due on foot of this recommendation should be paid to those affected on the termination of their employment.

• The Court recommends that the proviso that the payment of ex-gratia redundancy payments will be conditional on a satisfactory dependability and performance record should be withdrawn.

• The Court recommends that the employers offer in respect of all other matters covered by the Union’s claim be accepted.