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 : THE KILDARE HOTEL AND GOLF CLUB (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - AMICUS DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
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. The issues in dispute, which concern a number of workers (greenkeeping and gardening staff), who are union members are as follows:
Backdating of 3% pay increase from 1st April, 2006, to 1st July, 2005
Review of rates of pay to take account of pay rates in comparable employment.
Commitment to paying increases due under National Wage Agreements going forward from 1st January, 2006.
The Company does not recognise the Union for the purposes of collective bargaining. The issues were referred to the Advisory Service of the Labour Relation Commission under the provisions of the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I No.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 the Industrial Relations (Miscellaneous Provisions ) Act, 2004. A Court hearing was held on the 26th July, 2006.
UNION'S ARGUMENTS:
3. 1. Increases due under National Wage Agreements were implemented by the Company until October, 2004. An increase of 3% due in July, 2005 was withheld based on a plea of inability to pay. Documentation was not produced to support this plea. At the time that this pay increase fell due, it was known that the K Club would be hosting the Ryder Cup. In these circumstances, it is difficult to accept that the Company was unable to afford to pay increases of €11 per week to greenkeeping and gardening staff. The Union is seeking that the increase of 3% implemented on 1st April, 2006 be paid retrospectively to July, 2005.
2. In January, 2006, the time at which the Union's claim for a pay review was lodged, greenkeeping and gardening staff earned a basic rate of €9.59 per hour. If the claim to have 3% retrospectively applied is conceded this rate rises to €9.87 per hour (€20,000 per annum). The Union has provided details to the Court of comparators where rates of pay as at 1st January, 2006 ranged from €28, 400 to €32,500. The Union is seeking that rates of pay for greenkeeping and gardening staff should be revised to €15 to €16 per hour with effect from 1st January, 2006.
3. Increases under National Wage Agreements were implemented in the Company until October, 2004. Following a change of ownership in 2005, the new owners ceased to pay such increases and have indicated that they do not intend to pay such increases in the future. The Union is seeking that the Company resume the implementation of increases due under National Wage Agreements from January, 2006.
COMPANY'S ARGUMENTS:
4. 1. The greenkeepers and gardeners pay and conditions are not out of line with their counterparts in other similar employments . This contention is supported by a survey of similar resort complexes, conducted by business consultants, Farrell Grant Sparks, on the K Club's behalf (Details supplied to the Court). Greenkeepers and gardeners in the Company benefit from a defined contribution pension scheme, where employees contribute 6% and the employer contribution increases from 6% to 10% depending on age. Breakfast and lunch are provided as appropriate in well-appointed canteen facilities.
2. The Company is favourably positioned in relation to comparable luxury resort business which cater to the same market and do not have the benefit of other financial supports. Comparisons with public service employees in public golf courses (Union's comparators) are invidious and do not relate in any way to the commercial imperatives faced by a private golf resort. The Company is in an overall loss making situation. The reality of being the venue for the highly prestigious Ryder Cup is of little practical financial benefit to the K Club. All actual profits from the event will go to Ryder Cup Europe LLP. The K Club will benefit from various non-cost spin offs from the event. These will translate into real benefits only if the Ryder Cup is a success. Management will be in a far better position to consider sympathetically claims from the staff in nine months time, when real benefits flowing from hosting the event are being felt.
3. The Company is cognisant of the important role played by greenkeepers and gardeners in the maintenance of the K Club as a premier resort location. In light of the seasonal nature of the hotel and golf business profile, it is intended that pay reviews will take place in July, of each year, as was previously the case. The reason July is chosen is that at that point in the season, it is possible to gauge income for the first two quarters and project income on the basis of booking patterns for the remaining months. The pay review will have regard to the provisions of the National Wage Agreement, Towards 2016 (assuming it's ratification), in the calculation of annual increases.
RECOMMENDATION:
Preliminary Issue.
The Employer raised a preliminary objection to the jurisdiction of the Court to investigate the dispute. It was submitted that the Union had acted in a manner which contravened the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. No. 76 of 2004) in conducting a public campaign of misinformation and in wrongly representing the Employer’s position by anticipating a rejection of the Labour Courts Recommendation. In support of its submission the Employer relied upon articles which appeared in the public press in relation to the dispute in which comments of the type complained of were attributed to the Official of the Union responsible for the case.
In that regard the Employer referred the Court to Part 2 of the Code of Practice wherein the following introductory paragraph appears:
- “Where negotiating arrangements are not in place and where collective bargaining fails to take place, the following process would be put in place with which management and unions should fully co-operate in seeking to resolve the issues in dispute effectively and expeditiously”
It was submitted that by its conduct the Union acted in a manner which frustrated the Employer in observing a provision of the Code of Practice, contrary to Section 2(1)(c) of the Act.
The Union denied that the remarks referred to had frustrated the Employer in observing a provision of the Code of Practice. It was further contended that the Official had been misquoted in the remarks attributed to him.
Decision on the preliminary issue.
In accordance with the discretion afforded it by Section 3 of the Act the Court considered it appropriate to determine the preliminary point as part of the investigation of all issues arising in the case.
Section 2(1)(c ) of Act, upon which the Employer relied in contending that the Court’s jurisdiction has been ousted, provides as follows: -
- 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 –
- (c) the trade union or the excepted body or 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,…..”
It appears to the Court that in order to avail of this provision an employer would have to show that the conduct of the Union was such as to prevent an employer from complying with a relevant provision of the Code. This could arise, for example, where a Union fails to make itself available for meetings within the specified timeframe, or where it refuses to specify its claims with sufficient particularity so as to allow the employer to meaningfully respond. The requirements of good industrial relations practice dictate that parties should refrain from critical public comment while matters in dispute are in procedure. Nonetheless, it is doubtful if public comments of the type complained of, while unhelpful in an industrial relations context, could reasonably be regarded as coming within the ambit of Section 2(1)(c) of the Act.
In any event, in the context of this case, the point is somewhat moot. It is accepted that the last meeting under the Code of Practice was held on 10th May 2006, and that the process terminated on that date. The comments complained of appeared in the public press on 27th May and 28th June 2006. Since the remarks at issue were published after the date on which the process under the Code of Practice terminated, they could not have frustrated the Employer in observing the provisions of the Code.
For these reasons the Court is not satisfied that the Union have acted in a manner which frustrated the employer in observing a provision of the Code of Practice. Since no issue was raised in relation to the other conditions precedent to the Court’s jurisdiction specified by Section 2(1) of the Act, the Court is satisfied that the dispute is properly before it for investigation and recommendation.
Substantive dispute.
The Union referred three issues to the Court, namely: -
1. Backdating of pay increase
2. Review of pay rates
3. Future pay increases.
The Court considers it appropriate to deal with all three claims together since they each relate to the appropriate rate for the work performed by those associated with the claims.
The Union contended that the rate of pay of Greenkeeping and Gardening Staff is out of line with that paid to comparable staff in golf clubs in which pay and conditions are determined by collective bargaining. The Union provided information concerning rates paid in six such employments were rates of pay for comparable work ranged from €14 per hour to €16 per hour.
The Employer pointed out that it runs a hotel /country club golf resort and contended that the comparison should be confined to similar resorts. It submitted the results of a survey of rates paid by seven other such establishments which was conducted on its behalf by a firm of financial consultants. The results of this survey, it claimed, showed that the rates paid to the Claimants was not out of line with general standards.
The material provided by the Employer did not identify the respondents in the survey nor did it indicate if the rates referred to were established by collective bargaining. Information subsequently provided to the Court indicated that none of the respondents in the survey apply rates of pay which are determined by collective bargaining.
The Court noted the Employers argument that the hotel part of its business in not profitable. However, those who are party to these claims are not engaged in work which is associated with the hotel. Their duties are exclusively concerned with the maintenance of the golf course. There is no evidence to indicate that the golf course, per se, is loss making. It is, therefore, appropriate that the Court should seek to establish a fair rate for the job by reference to the pay of Greenkeepers and Gardeners employed elsewhere, who are engaged in similar duties, and who require a similar standard of qualification and skill. In this exercise the economic and commercial circumstances of the employer is a factor which must be taken into account. However, this must be balanced against the right of the employees to a rate of pay which is fair and reasonable when measures against appropriate external standards.
On the question of appropriate comparators, the Court has also had regard to the recent Judgment of Clarke J. inAshford Castle Limited v SIPTU,unreported, High Court, 21st June 2006. In dealing with this question the Judge had this to say at paragraph 2.8 of the Judgment: -
- “ The scheme only applies in circumstances where there is no collective bargaining. The only reasonable inference to draw from that provision is that the intention of the Oireachtas was to confer upon employees who did not have the benefit of collective bargaining, a means of attempting to achieve terms and conditions comparable to those who had the benefit of collective bargaining”
The Court has, therefore, taken the view that in considering what constitutes a fair and reasonable rate for the work at issue it should attach particular weight to rates paid to Greenkeepers and Gardeners engaged in work of a similar quality and standard to that of the Claimants, which are fixed by collective bargaining negotiations. On that basis the Court is satisfied that the current rates paid to those associated with this claim are out of line and should be adjusted.
The Court notes that the Union has not differentiated between Greenkeepers and Gardeners in its claim. The Court regards that approach as reasonable and had adopted it in the recommendations which follow.
The Court recommends that the rates payable to Greenkeepers and Gardeners should be adjusted on a phased basis as follows:
- With effect from 1st April 2006. €11.00 per hour
With effect from 1st September 2006. €12.00 per hour
With effect from 1st January 2007. €12.50 per hour
With effect from 1st April 2007. €13.00 per hour.
With effect from 1st September 2007. €14.00 per hour
With effect from 1st January 2008. €14.50 per hour.
All of these rates are in current terms and should be exclusive of normal wage round increases. Normal wage round increases should continue to be paid as heretofore and should have full regard to the rate of increase provided for by national agreements.
This recommendation is intended to be in full and final settlement of each of the claims which are the subject of this referral.
Implementation.
Save where otherwise stated the terms of this recommendation should be implemented within one month from the date on which it is issued.
Signed on behalf of the Labour Court
Kevin Duffy
14th August, 2006______________________
todChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.