FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 S6(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001 PARTIES : WEST WOOD CLUB LTD (REPRESENTED BY PETER DUFF & CO SOLICITORS) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Request by the Union or for a Determination in relation to Labour Court Recommendation No. LCR 18442.
BACKGROUND:
2. A Labour Court hearing was held on the 21st March, 2006.
DETERMINATION:
The matter before the Court is a request by the SIPTU for a Determination pursuant to Section 6(1) of the Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004 (the Acts). By letter dated 14th
February, 2006 to the Court, the Union contend that the issues, the subject of the Labour Court Recommendation No 18442 made under Section 5 of the Act have not been resolved and requested the Court to issue a Determination.
The Labour Court issued Recommendation No 18442 on 11th January 2006.
The Company was not represented at the hearing of the Union's application but did communicate with the Court through its legal advisors, in writing by letter dated 16th March 2006. The Court has taken full account of the Company’s position as set forth in its legal advisor's communications to the Court.
Section 6(3) of the Act provides:
(3) A determination under subsection (1) shall be in the same terms as a recommendation under section 5 except where-
(a) the Court has agreed a variation with the parties, or
- (b) the Court has decided that the recommendation concerned or a part of that recommendation was grounded on unsound or incomplete information.
The Company’s legal advisor's letter to the Court reiterated the contents of a letter sent by them prior to the hearing after which Recommendation 18442 was made, that the statutory pre-conditions had not been met and held that there was no obligation on it to negotiate or consult with the Union. It held that no requests had been made for employees to be accompanied by a trade union official at disciplinary/grievance proceedings and stated that there was no evidence that the Union represents the interests of any of the employees.
The employer also contended that the initial allegations made by SIPTU were patently false and were never particularised or substantiated and the employer had not been made aware of them. Additionally it submitted that the rates of pay recommended by the Court in LCR 18442 were contrary to the Competition Act and submitted that the rates of pay applicable to the cr�che workers were in line with national minimum wage rates as a minimum. The company contended that when account is taken of the fact that all breaks are paid for, then the rates applicable are in excess of the minimum wage.
The employer contended that the minimum pay increase recommended by the Court, if implemented would increase rates by 9.9% since the period from May 2005. This level of increase would be a significant financial burden on an already loss making area of the business and could not be sustained going forward (financial details were supplied to the Court). It also made the point that the introduction of a sick pay scheme as recommended by the Court would impose a further significant financial burden on the Company, which could have a severe and detrimental effect on this aspect of the business. Furthermore, the employer contended that it is fully compliant with its obligations under the relevant Health and Safety legislation.
Having considered the submissions of both sides, the Court is satisfied that the dispute has not been resolved and therefore it is appropriate for it to make a Determination. The Court is further satisfied that the Recommendation was not based on unsound or incomplete information. Accordingly, the Determination must be in the same terms as the Recommendation. However, for the purposes of clarity and having regard to the points made by the employer in its written communications to the Court, the Court wishes to state as follows;
1. The employer was given every opportunity to attend the Labour Court hearing on 15th December 2005 to address the Union’s claims but failed to do so. However, in a letter to the Court dated 7th November 2005, the employer held that the statutory pre-conditions for investigation of the Union’s claims had not been met, as the internal grievance procedures had not been availed of by any employee to address the claims. In Labour Court Recommendation No: 18442, the Court found that the conditions specified at Section 2(1)(a) to 2(1)(d) of the Acts were fulfilled and that the dispute was properly before the Court for investigation and accordingly issued its Recommendation.
2. The Act does not require a trade union or excepted body to disclose the names or other identifying details of its members as a condition precedent to the making of an application under Sections 2 or 6 of the Act. The Court intended its recommendation to apply only to those employees of the Company who are members of the Union. The Court intends this Determination to have like effect. The identification of those members is a matter between the Union and the Company. Section 5(2) of the Act provides that a recommendation made by the Court shall not provide for arrangements for collective bargaining. The Court did not make any such recommendation.
3. The employer provided information on rates of pay, meal breaks and hours of work of the workers concerned. The Court was influenced by the information supplied on rates of pay in similar employments in formulating its original Recommendation. Having considered the matter, the Court is satisfied that the information which the Court based its Recommendation upon was not grounded or unsound or incomplete information. Accordingly, it has not been established to the Court’s satisfaction that the Recommendation or any part thereof warrants a variation.
4. The employer also contended that it could not afford the costs of implementing the Court’s recommendations on pay and sick pay. In support of this latter contention, detailed information was provided on the financial circumstances of this aspect of the business (the cr�che). The information indicates that this department is loss making. However, no information was supplied on the financial situation of the main aspects of the business (the fitness club). Without that information and in the absence of a representative from the Company to address the Court’s questions, the Court can only assume that the remaining aspects of the business are operating at a profit.
5. The Court notes that the Company contended that it is fully compliant with the relevant Health and Safety legislation.
For the reasons set out above, the Court is satisfied that it is appropriate to issue a determination in this case.
Determination
In these circumstances, and in accordance with Section 6(3) of the Act, the Court must make a determination in the same terms as the recommendation and does so as follows:
Rates of Pay
The Court determines that the following rates of pay should be paid for Unqualified Childcare Workers and for Qualified Childcare Workers as follows:
| Rates per Hour | Unqualified Childcare Worker | Qualified Childcare Worker |
| On Start | €8.24 | €8.92 |
| Meet Standard Performance | €8.48 | €9.15 |
| Above Standard Performance | €8.77 | €9.45 |
In relation to the rate for Specialist / Montessori personnel, the Court determines the rates of pay as follows:
| Rate Per Hour | Specialist / Montessori |
| On Start | €10. 00 |
| Meet Standard Performance | €10.30 |
| Above Standard Performance | €10.80 |
The Court determines that wages should be paid on a fortnightly basis and not on a monthly basis.
The Court determines that for all hours worked in excess of 39 hours per week, the following overtime premia should apply: -
• Time plus one half after normal finishing time, Monday to Friday.
• Time plus one half for all time worked in the first four hours on Saturday and double time thereafter.
• Double time for all hours worked on Sunday.
Safety, Health and Welfare
The Court determines that the employer should ensure that proper structures and processes should be put in place to ensure the safety, health and welfare of the workers concerned with this claim.
Introduction of a Sick Pay Scheme
The Court determines that the employer should introduce a sick pay scheme providing for four weeks sick leave per year at full pay less social welfare. All sick leave should be covered by a medical certificate. The scheme should apply to all employees who have completed their probationary period. The scheme should not operate in respect of the first 3 days of any illness.
Disciplinary and Grievance Procedures.
The employer should 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). Consistent with the Code, the employer procedure should provide for representation by an employee representative in proceedings individual grievances and disciplinary matters. An employee representative is defined by the Code of Practice as including a work colleague or a trade union. The procedure should contain provision for either form of representation as the employee may decide.
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.
If there is any dispute in relation to the compatibility of the proposed procedures with the Code of Practice, the question may be processed under Section 43 (1) of the Industrial Relations Act 1990.
Implementation
The terms of this Determination should be implemented within one month from the date on which it is issued, with retrospective effect to the date envisaged in the original Recommendation (11th February, 2006).
Signed on behalf of the Labour Court
Caroline Jenkinson
4th April, 2006______________________
TOD/BRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.