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 : M1 NORTH LINK LIMITED - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr Nash |
1. Preliminary hearing in relation to Union application under the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provision) Act, 2004.
BACKGROUND:
2. A Labour Court hearing took place on the 9th August, 2005. The following is the decision of the Court:-
DECISION:
By application dated the 11th July 2005, SIPTU requested the Court to investigate a trade dispute between it and M1 Northlink Ltd.; pursuant to Section 2(1) of the Industrial Relations Act 2001, as amended. The subject matter of that dispute was set out in the application viz:
(1) Substantial increase in rate of pay
(2) Increase in shift rate premium
(3) Introduction of a Defined Benefit Pension
(4) Introduction of a sick pay scheme
(5) Increase in Sunday Premium
(6) Employee Share Option Scheme
(7) Disciplinary and Grievance Procedures as outlined in S.1 no. 146 of 2000
M1 Northlink Ltd. Requested the Court to hold a preliminary investigation pursuant to Section 3 of the Act (as amended) for the purpose of determining whether the requirements specified at Section 2 of the Act had been met. The Court , with the agreement of SIPTU, acceded to this request.
Preliminary Issues
M1 Northlink Ltd. (the Employer) contended that the Court lacked jurisdiction to investigate this dispute on a number of grounds, namely:-
(i) that there was no valid trade dispute existing within the meaning of Section 2 of the Act which the Court could investigate
(ii) that it was/is the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of worker who are party to that dispute, if any
(iii) that the internal dispute resolution procedures normally used by the parties concerned have failed to resolve the dispute
[and that to investigate the Court would have to satisfy all of these criteria]
The employer submitted that it is a condition precedent to the Court’s jurisdiction that each of these criteria be fulfilled.
Existence of a Trade Dispute
The employer submitted that no bona fide trade dispute existed between it and the applicant union. The Company further submitted that the referral was, in reality, an attempt to compel it to negotiate with SIPTU. The issues defined are purely illusory complaints brought forward as a stratagem to so compel the Company. It contended that no bona fide trade dispute exists within the meaning of the Industrial Relations Acts.
The Union, for its part, argues that the matters in dispute are real and valid and are directly comparable to those issues normally placed before the Court in the course of any trade dispute under the Industrial Relations Acts. The dispute with the Company concerns pay and conditions and is a bona fide trade dispute.
Section 3 of the Act provides for a preliminary hearing for the purpose of determining if the requirements, at Section 2 have been specified.
Section 2 provides:
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 anything (or such a provision of any code of practice amending or replacing that code),
- 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 of 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.
On a plain reading of this section, the conditions specified are those contained at paragraphs (a) to (d) of subsection (1). In the Court’s view, questions concerning the validity of the dispute referred for investigation should more properly be dealt with in the course of the substantive investigation under Section 5 of the Act. Nonetheless, since the matter was fully argued before it, the Court has considered the submissions of the parties on this point.
There is no definition of the term “trade dispute” in the 2001 Act. However, Section 13 of the 2001 Act provides that it is to be construed together with the Industrial Relations Act 1946 to 1990. Section 2 of the Industrial Relations Act 1990 provides that, other than Part II, it is to be construed together with the Industrial Relations Acts 1946 to 1976 as one Act. Section 8 of the Industrial Relations Act 1990 provides a definition of the term “trade dispute” but that definition is expressly for the purpose of Part II of the Act only.
The appropriate definition of the term “trade dispute” for the purpose of the 2001 Act is that set out at Section 3 of the Industrial Relations Act 1946, as follows:
the expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of employment, or with the conditions of employment, of any person;
This is a broader definition than that contained in the 1990 Act (or that previously contained in the now repealed Trade Disputes Act 1906) in that it includes adifferencebetween employers and workers as well as a dispute. In the context in which it is used the term “difference” must mean something distinct from a “dispute”. It would appear to have been included in the definition of the 1946 Act so as to allow the Court to investigate a disagreement arising within an employment before positions became so entrenched as to constitute a dispute, in the sense that a strike or industrial action is in place or in contemplation.
In contending that there is no trade dispute in existence between it and the Union members, the employers submitted that the real purpose of the Union was to gain recognition for the purposes of collective bargaining. It contended that the present proceedings were merely a device to achieve that objective.
In advancing that argument the Solicitor for the employer made extensive submissions to the effect that the Act cannot be used to enforce trade union recognition against an employer who does not wish to negotiate with trade unions. The Court readily accepts that this interpretation is correct. It is abundantly clear from the legislative history of the Act and from its terms overall that it was not intended to provide for trade union recognition (in the sense that an employer will recognise the union as the collective representative of its workforce) and that it cannot be used to force employers to engage in collective bargaining with trade unions against their will.
Having considered the submissions of the parties on this point the Court is satisfied that the issues raised in this referral by the Union are real issues of difference between its members and the employer. In that regard the Court rejects as unfounded and unsupported by any credible evidence the assertion of the employers that they are being used as a colourable device to achieve an unlawful end. They are clearly of a type normally dealt with by Rights Commissioners, the LRC and the Court pursuant to the Industrial Relations Acts 1946 – 1990 and form appropriate subject matter of a trade dispute. Once there is a genuine trade dispute, as that term is defined by the 1946 Act, the fact that there may be other associated disputes which have not been referred to the Court is of no consequence.
In the present case, the Court is satisfied that a difference or differences exists between workers who are represented by SIPTU and M1 North Link Ltd., concerning the terms and conditions of their employment, and that this difference constitutes a trade dispute for the purposes of the Act.
Collective Bargaining Negotiations
The meaning of this term was considered at length by this Court in SIPTU v Ashford Castle [2004] E.L.R.214. The Court stated as follows:
A central question which arises for consideration is the meaning of the term“collective bargaining negotiations”as it appears in the subsection. The expression is not defined in the legislation nor is it defined in any other Irish industrial relations statute of which the Court is aware. It is not a legal term of art but it is a commonly used term in the conduct of industrial relations. In the absence of any statutory definition of the term the Court must assign to the expression the meaning which it would normally bear in an industrial relations context.Collective bargaining comprehends more than mere negotiation or consultation on individual employment related issues including the processing of individual grievances in relation to pay or conditions of employment. In the industrial relations context in which the term is commonly used it connotes a process by which employers or their representatives negotiate with representatives of a group or body of workers for the purpose of concluding a collective agreement fixing the pay and other conditions of employment applicable to the group or collective of workers on whose behalf the negotiations are conducted.
Normally the process is characterised by the involvement of a trade union representing workers but it may also be conducted by a staff association which is an excepted body within the meaning of theTrade Union Act 1941, as amended. However, an essential characteristic of collective bargaining, properly so called, is that it is conducted between parties of equal standing who are independent in the sense that one is not controlled by the other.
Both parties adopted this definition in their submissions and it is adopted by the Court in the instant case.
The employer submitted that while it does not engage with trade unions it does engage in extensive collective bargaining with its employees and employee representatives. This, it submitted, is a continual process whereby the Company negotiates with representatives of its employees for the purpose of concluding agreement in respect of terms and conditions of employment.
In this regard, the employees elect (in secret ballot) employee representatives to a Works Committee (WC) and the WC negotiates directly on an ongoing basis with the Company through the Company representatives on the WC in relation to all terms and conditions of employment. Minutes of the meetings are made available to all employees and are approved by the employee representatives.
SIPTU submitted that the WC does not fulfil the basic requirements for collective bargaining as set out in the definition of that term adopted by the Court. It contends that the WC is purely a consultative forum, with the General Manager as Chair, a HR Manager from the Company (and its parent) as Secretary and a member of other staff including the Telling Manager, some supervisors and some staff members. The members of the WC have no mandate from the workers to negotiate on their terms and conditions of employment. It is further submitted that the management of the employer has made it clear at all times that the WC is a consultative and not a negotiating body.
In support of its contention SIPTU referred the Court to documents issued by the employer to its employees concerning the role and function of the WC. In the announcement of the Works Committee, it was stated
“The Works Committee’s main function is to enhance the overall level and availability of information communicated within the Company. It acts as a mechanism by which staff can bring any issues or queries they may have to the attention of Management”.
Findings of fact
Collective Bargaining Negotiations
Since there is no real disagreement between the parties as to how the Court should construe the expression “collective bargaining” the essential questions for determination by the Court are ones of fact and degree.
In considering this aspect of the case the Court must ask itself two basis questions, namely:
1. Is it the practice of the employer to engage in collective bargaining negotiations?
2. If the answer to that question is in the affirmative, is it the practise to do so in respect of the grade, group or category of employees who are party to the trade dispute which is the subject matter of this application?
There is a forum at which employment-related matters are discussed between management and employees. The forum was established by the employer on its own initiative and the parameters within which it operates are determined by the employer. It is chaired by a senior manager and its secretary is a senior manager. The outcome of the deliberations of the WC are communicated to employees by management and there is no process by which the decisions of management are subject to ratification or adoption by the staff either collectively or through their representatives. Hence it appears clear to the Court that this body is a creature of the employer and its proceedings lack the degree of independence which is an essential characteristic of collective bargaining properly so called. The Court is further satisfied that the object of the process engaged in by the WC is, at best, to allow staff participants to make representations to management on matters relating to conditions of employment but it does not conclude collective agreements nor has it ever concluded such an agreement. Furthermore, and while it is by no means determinative of the matter, the Court regard it as significant that the references to the WC contained in the employee handbook make no mention of collective bargaining or negotiation of any sort. Rather, they are expressed in terms which make it clear that it is a forum or a mode of communication between staff and management, not a consultative body.
In the Court’s view the deliberations of the WC, on which the employer relies in contending that the first limb of section 2(1)(a) is not fulfilled, does not amount to collective bargaining properly so called. Accordingly, the Court holds that it is not the practice of the employer to engage in collective bargaining negotiations.
This finding is sufficient to dispose of the first ground relied upon by the employer in contending that the Court lacks jurisdiction in this case. However, for the sake of completeness, the Court should express a view as to whether the deliberations of the WC are in respect of the grade, group or category who are party to the trade dispute.
A similar question arose for consideration inIMPACT / IALPA v Ryanair [2005] E.L.R. 2. 99. Here, the Court pointed out that the collective bargaining to which Section 2(1)(a) refers must be conducted on behalf of the “grade group or category of workers who are party to the trade dispute”. The Court further pointed out that each of these words must mean something different otherwise the provisions would be a tautology.
The workers who are party to the trade dispute in the instant case are those in number who are members of SIPTU and whose interests are represented by that Union. They clearly constitute a group within the employment which is not represented in any form within the WC and who have never authorised any body of persons other than SIPTU to engage in collective bargaining on their behalf. In these circumstance, and in particular having regard to the combined effect of Section 6 (1) and Section 6(3)(h) of the Trade Union Act 1941, the Court is satisfied that the WC could not purport to engage in collective bargaining on behalf of the group of workers who are party to the instant trade dispute.
Internal Procedure
What is meant by the term “disputes resolution procedures” as it appears in Section 2(1)(a) of the Act, was considered by the Court's Recommendation LCR NO. 17919, MANDATE v Radio Kerry. Here, in considering what constitutes a dispute resolution procedure (if any) normally used by the parties concerned, the Court stated as follows:
- “It should first be noted that the procedures to which the subsection refers must be one which is normally used by the parties. The use of the term “normally” connotes a procedure which is regularly and routinely used”.
- The first question for consideration is what is meant by the term “dispute resolution procedure”. This is an expression which, in industrial relations parlance, normally means a procedure through which grade or group disputes concerning terms and conditions of employment can be processed. The term has, in that sense, a technical meaning. It is to be distinguished from a grievance procedure which is usually concerned with individual issues. This distinction is reflected in the simultaneous promulgation of separate Codes of Practice on voluntary dispute resolution and on grievance procedures (S.I 145 of 2000 and S.I 146 of 2000) as part of a package of measures recommended by the Report of the High Level Group established Under Partnership 2000 to examine issues surrounding union recognition and bargaining arrangements. Included in these proposals was a recommendation which lead to the enactment of the 2001 Act.
Further support for giving the expression this technical meaning can be found from the context in which it is used. The reference to disputes resolution procedures is contained in a single sentence, the first part of which clearly relates to grade, group or category disputes. On the principle of construction that words in a statute are to be interpreted in the context in which they appear, the reference to dispute resolution procedures must be interpreted as relating to procedures through which grade group or category issues can be appropriately processed where such issues are in dispute .
The Court has also considered this question by looking at the purpose of the enactment, gathered from the statute as a whole. It is clear that the intention of the Oireachtas was to give effect to the report of the High Level Group on Trade Union Recognition and the Right to Bargain. Taken in its overall context that report set out to address situations in which groups of workers wish to be collectively represented by a trade union (or excepted body) in addressing issues concerning their terms and conditions in employments in which collective bargaining negotiations are not in place. It set out a mechanism by which the issues in dispute could be dealt with either through the Code of Practice on Voluntary Dispute Resolution or through the Court.
This is reflected in the overall scheme of the Act. Only a trade union or an excepted body can refer a case to the Court. The subject matter of the referral must be a trade dispute. Individuals or groups of individuals do not have a right of referral. These provisions are entirely consistent with the view that the Act is primarily concerned with resolving group or category disputes. Accordingly, any precondition to the Court’s power of investigation relating to the use of procedures could only relate to procedures appropriate for the processing of disputes of this nature.
Decision
Having regard to the findings of fact reached by the Court, which are set out herein, the Court is satisfied that it is not the practice of the employer herein to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute. The Court is likewise satisfied that there are no internal dispute resolution procedures normally used by the parties concerned which have failed to resolve this dispute,
As the Court is also satisfied that the other conditions specified by Section 2(1) of the Act have been met, the Court decides that it has jurisdiction to investigate the substantive dispute and will proceed accordingly.
Signed on behalf of the Labour Court
Raymond McGee
31st August, 2005______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.