FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : KERRY INGREDIENTS LTD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Working under protest clause.
BACKGROUND:
2. The case before the Court concerns a dispute between the Company and the Union in relation to the "working under protest clause" which was part of a Company/Union agreement in 1993. A new productivity agreement was concluded in 2000 in relation to the agreed procedures to be followed should a grievance arise within the Company.
The Company's position is that although a new productivity agreement was put in place in 2000, the issue of the "working under protest clause" should still be available to the Company if required.
The Union reject the Company position on the basis that the Agreement of 2000 sets out the procedures to be followed should a dispute arise, and that the 1993 Agreement which provided the "working under protest clause" in now invalid.
The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 7th of July, 2005, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 6th of September, 2005.
COMPANY'S ARGUMENTS:
3. 1. The "working under protest clause" of the 1993 Agreement was not mentioned when negotiating the 2000 Agreement. The Union did not seek to have the clause cancelled or varied in any way. The Company position is that the clause can be invoked where necessary.
2. To remain competitive the Company needs to progress technical developments and to respond to market requirements. This will require that work be carried out under protest if necessary, while awaiting referral to a third party should a dispute arise.
3. The Union had "worked under protest" twice since 2000. Based on this fact, it must be accepted that "working under protest" as provided for in the 1993 Agreement is still in force.
UNION'S ARGUMENTS:
4. 1. The Agreement negotiated in 2000 replaced the 1993 Agreement in full.
2. Clear procedures were identified in the 2000 Agreement for the resolution of disputes within the Company. Working under protest was not included in this agreement.
3.It is unacceptable that the Company try and invoke a procedure which they know to be invalid.
RECOMMENDATION:
Having considered the views of the parties expressed in their oral and written submissions, the Court is of the view that both the 1993 and 2000 agreements permit the Company to manage their business while items in dispute are being dealt with either internally or through a third party. This is an implied right in any Company/Union agreement. Similarly workers have an implied right to process their grievances.
The Court is of the view that the 1993 agreement covered this eventuality and provided protection for both sides. Assistance was provided at the time by the Labour Relations Commission, who set down tight parameters for the process involved.
As this dispute has arisen due to the wording of the new productivity agreement in 2000, the Court recommends that in order to avoid any further ambiguity, the parties should meet to agree new wording to encompass these rights and to include a "working under protest clause" which is clear and unambiguous going forward and allows for an agreed timeframe while matters in dispute are being adjudicated upon.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th September, 2005______________________
AH/MB.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.