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 : ROCHFORD BRADY LEGAL SERVICES (REPRESENTED BY SIOBHAN PHELAN B.L. INSTRUCTED BY PAULA MCHUGH, SOLICITOR) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Referral from the Labour Relations Commission under the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.
BACKGROUND:
2. Rochford Brady Legal Services was founded in 1980 and employs 75 workers. The Company is a provider of ancillary legal services covering aspects of lodging , searching and bespeaking in all courts and civil service offices. It also provides a service as Town Agents, Company Formation Agents and Summons Servers. The issues in dispute, which concern a number of workers (Law Clerk and Law Searcher) who are Union members, are as follows:
Rates of Pay,
Bonus,
Subsistence Allowance,
Sick Pay Scheme; and
Communications /Consultation.
The Company's response to the Union's request for a meeting to discuss those issues is that it deals directly with workers and does not negotiate with unions. The Union referred the issues to the Advisory Service of the Labour Relations Commission under the provisions of the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76 of 2004). Both parties participated in this process but agreement was not reached. The dispute was referred to the Labour Court in accordance with Section 2 (1) of the Industrial Relations (Amendment) Act, 2001, as amended by he Industrial Relations (Miscellaneous Provisions) Act, 2004. A Court hearing was held on the 9th March, 2006.
UNION'S ARGUMENTS:
3. 1.Pay. The Union is seeking the introduction of a salary scale in line with industry norms and best practice in the industry. All the clerical functions performed by staff in the Company can, in the Union's view, be compared favourably to similar clerical functions in both the Law Library and the Bar Council. The Union is also seeking the application of the terms of National Wage Agreements.
2.Bonus. The Company operates a twice annual bonus for all employees which is given to workers based on grade and salary. There are five criteria determining the bonus and an appraisal form is completed. However, there are no one- to- one meetings with Management on the amount paid, no discussions on the amount available or how it is arrived at. There is no discussion on whether the set criteria have been met or not and no feedback. The Union is seeking openness and transparency in relation to the Bonus issue.
3.Subsistence Allowance.A Subsistence Allowance, value €3.00 per day, was paid to staff required to work outside the office. It amounted to €15.00 per week for the majority of staff. The allowance was unilaterally withdrawn by Management in mid-2004 without discussion or agreement. The Union seeks the introduction of the allowance from the date of withdrawal, appropriate retrospection and a review of the amount of €3.00 per day.
4.Sick Pay Scheme. The Union is seeking an improvement in the Company's sick pay scheme in line with good practice for clerical workers in the private sector. The current sick pay scheme in operation in the Company provides that Employees who have worked a full two years and starting their third year are entitled to two days of paid sick leave.
Commencing Fifth year of employment Three days sick leave,
Commencing Sixth year of employment Four days sick leave,
Commencing Seventh year of employment Five days sick leave,
Commencing Eight year of employment Six days sick leave,
Commencing Ninth year of employment Seven days sick leave.
The maximum sick pay limit is seven days after nine years' service. If a worker has sick days leave left at the end of calendar year he/she will be paid for those days not taken.The Union is seeking the introduction of a formal sick pay scheme for all employees who have completed twelve months service as follows:
Thirteen weeks full pay less social welfare payments and
Thirteen weeks half pay less social welfare payments.
5.Consultation/Communication. The Union is seeking that staff be afforded the facility of a Consultative Forum where issues of concern to staff or individual workers can be raised and addressed and if not resolved referred through the agreed procedures and ultimately to the Union if they remain unresolved.
COMPANY'S ARGUMENTS:
4. 1.Pay.If a salary scale were imposed by reference to industry norms, it would result in a disimprovement of terms and conditions of remuneration offered by the Company. It is Management's prerogative to retain the power to offer more favourable terms and conditions to workers if it chooses to reflect the value of the employee to the Company.Without the power to offer attractive packages to long- term and loyal employees these employees will become disaffected and will leave the business with serious implications for the long- term viability of the business. All employees in the Company are paid well in excess of the minimum wage and in excess of equivalent employees in the ancillary legal services industry. Significant pay increases have been awarded to workers since 2003. The average percentage increase is well in excess of those provided for in National Wage Agreements. The Company refutes the Union claim that the Law Library rates are appropriate comparators. Notwithstanding this, the Law Library rates, in so far as they are known to the Company, are lower overall than rates paid to many of the Company's staff, particular those with lengthy service.
2.Bonus.Bonus is paid on a discretionary basis and is based on grade and salary. Each member of staff is graded on appointment. This grade is based on education and experience brought to a position. On an annual basis grades are assessed to see if each person warrants an upgrade. It is not normal to upgrade each year. Upgrades are based on performance, commitment and loyalty. There is no entitlement to a bonus. It is paid by the Company when profitability is achieved and the bonus pool is determined by Company performance and the discretion of Management. The bonus pool is divided between the number of grades to create a maximum payment per grade. Employees who achieve a bonus are informed as to the basis for this and the Company is happy that all employees should receive feedback from their Line Managers and have indicated a commitment in this regard.
3.Subsistence. The Company has agreed to reinstate the lunch allowance from February, 2006. The Union claim for retrospection is unreasonable. The allowance was terminated in January, 2004, however, the Company awarded pay increases to reflect the removal of the allowance so that workers were not at a financial loss. As workers were compensated by salary increases they did not lose out as a result of the termination of the allowance.
4.Sick Pay Scheme. The Company sick pay scheme follows guidelines recommended by the Small Firms Association. The Company also provides additional discretionary sick pay depending on individual circumstances. The scheme operated by the Company operates to the advantage of staff. The Union's proposed scheme will be to the disadvantage of the majority of staff and in particular to those with long service. There is already a significant absentee rate in the workplace and the Company fears that a consequence of the standard sick pay scheme sought by the Union will exacerbate this problem which has knock- on effects on productivity, quality of service delivery, competitiveness and ongoing viability.
5.Consultation / Communication. The Company submits that the Court does not have jurisdiction to deal with this issue under the Act, but nevertheless the Company contends that it actively engages in consultation and communication with its employees. Annual appraisals are conducted with feed-back to the employee and input from the employee. Working groups have been established within the Company and these are believed effective for workers who chose to participate. Also the Company has an agreed Disciplinary and Grievance Procedure which is in full compliance with the S.I. 146 of 2000.
RECOMMENDATION:
Preliminary Point on Jurisdiction:
The Company submitted by way of a preliminary objection that the Court does not have jurisdiction to deal with the Union’s application under the Act as one of the matters referred, the question of communications/consultation, falls outside the scope of the Court’s competence in that this matter could not be understood as constituting “terms and conditions of employment” within the meaning of Section 5(1) of the Act and is a matter of “management –determined Company policy” and thus outside the jurisdiction of the Court.
In advancing this argument, the Company relies primarily on the decision of Kelly J. inRafferty v Bus Eireann, where the High Court considered whether a change in duties of a bus driver could be said to be a change in the terms and conditions of service and said as follows:
- “The position therefore is that in my view the respondent is correct in saying that the change which it seeks to bring about are ones which involve work practices rather than changes in conditions of service. These alterations do not affect the rate of pay, hours of work, length of holidays, sick leave or pension rights. Neither do they in my view alter the basis or core work of a bus driver. These altered duties will only fall to be executed at times where drivers would otherwise be idle and yet remunerated. In each case these duties will constitute a small part of the overall work, which will remain bus driving. I therefore conclude that the proposed alterations relate to work practices rather than conditions of service. Such alterations are not protected by Section 14.”
The Company therefore submitted that communication/consultation are not matters which form any part of the terms and conditions of an individual’s contract of employment. While they may constitute work practices, which fall outside the scope of the contract, they are, according to the Company, matters of policy and management prerogative upon which the Court has no jurisdiction to adjudicate.
The Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004, forms a part of the whole body of legislation which is collectively cited as the Industrial Relations Acts, 1946-2004 (inclusive), within the terms of which the Court has operated for the past 60 years. The Court’s power to deal with disputes has been built up, through consistent practice, over that period and, effectively, unless specifically excluded, the Court can hear any matters of dispute or difference between parties as defined as “Trade Disputes” in Section 3 of the principal Act of 1946.
As, over this time, the Court has dealt with many dispute situations in threatened dispute situations on the matters raised in the present case i.e. communications/consultation, it would clearly be wrong were the Court now to be prevented from dealing with such matters in dispute under the Industrial Relations Acts, 1946-2004. It could mean that the Court was unable for technical reasons to hear the case of a threatened strike where the issues in dispute concerned the matters of communications and/or consultation.
The judgement and the associated judgement quoted(Cresswell v Board of Inland Revenue [1984] A11ER713) in Rafferty v Bus Eireannconcern the question of safeguarding conditions of employment and are not pertinent to the point at issue in the instant case.
The Court therefore takes the view that the matters of communication/consultation are matters properly before it and in respect of which it has jurisdiction under Section 5(1) of the Act, and so decides. Therefore, the conditions precedent to jurisdiction under Section 2(1) of the Act have been satisfied and the Court will therefore proceed to hear the substantive issues.
Substantive Issues:
Salary:
On the basis of the submissions before it and the responses of the parties, the Court is not in a position to make any recommendation on this claim at this time. The Union’s claim “seeking the Court’s assistance in trying to address an appropriate rate for the work carried out” is not clear nor discernible to the Court.
Bonus:
The Company should confirm to workers the size of the bonus pool available for distribution, how the bonus is calculated and the basis for payment. Workers should be made aware of all criteria determining bonus payment including details of any individual factors which they can influence.
Sick Pay:
The Court recommends from the 1/04/06 a sick pay scheme giving 6 weeks’ paid sick leave per calendar year less social welfare payments, no payments for the first 3 days’ absence and a service qualification of 12 months. Nothing in this recommendation shall prevent the Company continuing its practice of paying for unused sick leave under its pre-existing sick pay scheme.
Lunch Allowance:
The lunch allowance should be reinstated from the date of this Recommendation. Those who lost the allowance in 2004 should be paid a sum of €500 in lieu of retrospection.
Communications/Consultation:
Communications and consultation with staff members should accord with good normal industrial relations practice. Contact should be personal as well as by e-mail. Reasonable requests for meetings should be acceded to within a realistic time frame.
Signed on behalf of the Labour Court
Raymond McGee
10th April, 2006______________________
TOD/BRDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.