FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 S6(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001 PARTIES : DUNNES STORES - AND - MANDATE TRADE UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Request by a Trade Union or excepted body for a determination in relation to Labour Court Recommendation No. LCR18469
BACKGROUND:
2. A Recommendation, LCR 18469 issued in this case on the 3rd February, 2006. On the 9th March, 2006 the Union applied to the Court, for the issuing of a Determination in accordance with Section 6(1) of the Act. A Labour Court hearing took place on the 5th April, 2006. The following is the Court's Determination:-
DETERMINATION:
On 3rd February 2006 the Court issued a Recommendation LCR18496 under Section 5 of the Industrial Relations (Amendment) Act 2001, as amended, (the Act) in a dispute between Dunnes Stores and MANDATE Trade Union. By letter dated 9th March 2006 MANDATE sought a determination in the same terms as the said Recommendation pursuant to Section 6 of the Act.
The Union told the Court that despite having asked the employer to indicate its position in relation to the Court's recommendation it had not received any indication that it was acceptable. The Union also told the Court that the Court's Recommendation with regard to canteen facilities had not been acted upon and no indication had been given as to when appropriate action would be taken.
The representative of the Employer told the Court that the Company had accepted the Court's Recommendation and intended implementing it in due course. The Court was told that no complaint had been received from any of the Company's employees at the store affected in relation to any matter coming within the scope of the Recommendation.
It was submitted by the representative of the Employer that the Court did not have jurisdiction to make a Determination in the circumstances prevailing as the Recommendation had been accepted and the dispute resolved.
Conclusion of the Court.
Section 6 of the Act provides as follows:
6.- (1)Where, in the opinion of the Court, a dispute that is the subject of a recommendation under Section 5 has not been resolved, the Court may, at the request of a trade union or excepted body and following a review of all relevant matters, make a determination.
(2) -A determination under subsection (1) may have regard to terms and conditions of employment, and to dispute resolution and disciplinary procedures, in the employment concerned but shall not provide for arrangements for collective bargaining.
(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.
It is clear from subsection (1) of this Section that before it can issue a determination under this Section the Court must first form the opinion that the dispute which was the subject of the recommendation has not been resolved. It should be noted that it is the opinion of the Court that is material in this regard and not that of either party.
It would seem to the Court that in a normal industrial relations sense an issue in dispute can only be regarded as resolved when both parties are satisfied that it is resolved. Normally a dispute, which is the subject of a Court recommendation, is resolved when the recommendation is accepted by both parties and is either implemented or a timeframe is agreed for its implementation. In this case the Employer has not communicated with the Union in relation to the Court's recommendation and while the Employer told the Court that it intends to implement the measures recommended it has given no firm indication as to how or when it intends so doing.
In these circumstances the Court had formed the opinion that the dispute which was the subject of Recommendation LCR18469 has not been resolved. Accordingly the Court considers it appropriate to make a Determination in the same terms as the Recommendation.
DETERMINATION.
Procedural Agreement.
By its first claim the Union is seeking a determination from the Court to the effect that the Company should comply with the procedural agreement in relation to the matters covered by its terms. The Court considers it regrettable that the Union found it necessary to bring such a claim before the Court under the Act of 2001. The circumstances surrounding the conclusion of this agreement are well known and are a matter of record. The agreement brought to an end a period of turbulence in the relationship between the Company and the Unions representing its staff which lead to two national strikes by the Unions. The agreement was expressly for the purpose of ensuring a more orderly approach to the conduct of industrial relations in the future.
The agreement provides a framework within which issues of difference between the management and staff of the Company can be discussed and resolved internally. If internal resolution is not possible matters of difference can ultimately be processed through the industrial relations machinery of the State, including this Court. Such agreements are common in similar employments and are an essential support to the maintenance of industrial peace and the orderly resolution of disputes. It is incumbent on all parties to honour such agreements in their spirit and intent.
In the present case neither party has expressed any desire to terminate the agreement and both parties have told the Court that they wish to see it complied with by the other. Accordingly, the Court determines that both parties observe the terms of the agreement in the processing of staff grievances. Should any disagreement or dispute rise in relation to interpretation of the agreement, the parties should jointly refer the matter to the Court under Section 7 of the Industrial Relations Act 1969.
Disturbance.
The Court did not recommend concession of the Union's claim for a disturbance payment. The Court determines accordingly.
Canteen Facilities.
The Court determines that the Company provide canteen services and facilities at the new store to a standard no less favourable to those provided at the old store immediately prior to its closure.
Signed on behalf of the Labour Court
Kevin Duffy
19th April, 2006______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.