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 : DUNNES STORES - AND - MANDATE DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Union application under The Industrial Relations (Amendment) Act, 2001, as amended by The Industrial Relations (Miscellaneous Provisions) Act, 2004.
BACKGROUND:
2. In October 2005, Dunnes Stores opened a new Superstore in Jetland Shopping Centre, Limerick. Staff were concerned about the implications for their employment of the move to the new store. Eighty four of the hundred staff raised a grievance with the Store Manager seeking disturbance payment for the move. They were concerned about their hours of work, and the availability of canteen facilities. This was done using a grievance form which sets out stages one and two of the 1996 Agreement for resolving problems arising between Management and Staff . The form was signed by the eighty four staff members and sent to the Store Manager by registered post on the 12th September, 2005. The Company responded by letter 7th October, 2005 rejecting the claim and stating that the new store represented a considerable investment, was "state of the art" and that "the question of disturbance therefore does not arise".
The Union then wrote to the Company seeking a meeting with Management in accordance with stage three of the agreed procedures. Management responded by letter dated 26th October, 2005 stating that the Company's position was as outlined in their letter of 7th October, 2005 and that "the matter was now closed".
The Union then referred the matter to the Advisory Service of the Labour Relations Commission pursuant to the provisions ofthe Enhanced Code of Practice on Voluntary Dispute Resolutions (S.I. No.76 of 2004). The Company were invited to participate in the procedures outlined in the Code by the Advisory Service. The Company wrote to the Advisory Service on the 21st November, 2005, declining to participate in the procedures and claiming that the internal procedures had not been complied with by staff.
The dispute was then referred to the Labour Court on the 25th November, 2005 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 January, 2006.
The following is the recommendation of the Court:
RECOMMENDATION:
Preliminary Issue
The Company raised a preliminary objection to the Court’s jurisdiction to investigate the this dispute on the basis that the requirements specified at Section 2(1)(a) of the Industrial Relations (Amendment) Act 2001, as amended (the Act) have not been met. Counsel also submitted, in outline, that the Act is invalid having regard to the provisions of the Constriction of Ireland 1937 on the grounds, inter alia, that it permits what could amount to an unjust attack on the property rights of the Company. Counsel explained that these submissions were being made for the record and in the knowledge that they cannot be entertained by this Court.
Section 2(1)(a) of the Act 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 –
- (a) it is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute,”
The relevant procedure is contained in an agreement concluded between the Company and the Union in 1996. The agreement, and in particular the procedure now at issue, was in settlement of a major strike by the Union. Its purpose was to provide a framework for engagement between the Union and the Company and, presumably, to reduce the risk of similar disruptive industrial action in the future.
The agreement prescribes a number of sequential steps, the first three of which are material to this dispute. They are: -
- Stage 1 If a member or members of staff have a grievance they must raise the matter with the Store Manager.
Stage 2 If the grievance is not resolved at Stage 1, then the member(s) may request the store manager to convene a meeting with the next line of management at which the staff member may attend, and at their discretion, be accompanied by a work colleague or shop steward. The purpose of this meeting is to resolve the grievance as quickly as possible. If the grievance cannot be resolved within 18 days from the start of Stage 1, then this Stage will be deemed to have been completed.
Stage 3 If the grievance is not resolved at Stage 2, then a meeting will take place between the Store Manager, Area Manager, and or/ Head Office Executive and the Union Official to discuss the matter. This meeting is to be convened by management. The Union official will be accompanied by the shop steward and the member of staff concerned, as appropriate. The purpose of this meeting is to resolve the grievance as quickly as possible. If the grievance cannot be resolved within 14 days from the start of Stage 3, then this Stage will be deemed to have been completed.”
The facts giving rise to the present dispute are as follows: -
In September 2005 the Company opened a new store in Limerick. Staff employed were to be relocated to the new premises, a short distance away. They appear to have formulated a claim for disturbance payments in consideration of the impending transfer. The Union contend that this was based on proposed revised trading hours at the new store and the absence of a staff canteen.
The Union advised its members to pursue this claim by way of recording a grievance pursuant to the agreed procedure. The Union provided its members with a form for this purpose. The form described the grievance thus: -
- “We are seeking disturbance payments for moving to the new store”
84 members of the Company’s staff signed the form. The Union sent the form to the Store Manger by registered post under cover of a letter dated 12th September, in the following terms: -
“Re: - Staff Grievances – Disturbance Payments.
Dear Mr Martin,
The staff employed in the old Dunnes Stores Jetland are seeking a disturbance payment due to the disruption and inconvenience of moving to the new store
A grievance form is enclosed with a list of signatures attached. The staff are seeking that their grievance be addressed in accordance with the agreement for resolving problems arising between management and staff of Dunnes Stores
Yours sincerely
BRIAN HIGGINS
DIVISIONAL ORGANISOR”
By letter dated 7th October 2005, the Store Manager replied to the Union as follows: -
- Dear Mr Higgins,
I am writing further to your letter of 12th September 2005.
The new store is state of the art and represents a considerable investment on behalf of the Company on the same location as Jetland. The question of disturbance therefore does not arise.
Yours sincerely
DUNNES STORES
STUART MARTIN
STORE MANGER
By an undated letter which appears to have been sent on 12th October the Union replied as follows: -
Re: Staff Grievances – Disturbance Payment – Dunnes Stores, Jetland
Dear Mr Martin,
I refer to my letter of 12th September, 2005 in connection with a disturbance payment for staff moving to the new store. A list of signatures of Jetland staff was attached to the grievance form, seeking that the matter be dealt with in accordance with agreed procedures.
As there has been no discussion at local level, in accordance with stages 1 and 2 of the procedure, I am now seeking a formal meeting with you the store manager, the area manager, and a head office executive. This request is in accordance with stage 3 of the procedures.
Kindly contact the undersigned, so that we can make arrangements for the formal meeting.
Yours sincerely,
BRIAN HIGGINS
DIVISIONAL ORGANISER.
By letter dated 26th October 2005 the Store Manager replied as follows: -
- Dear Mr Higgins,
I refer to your undated letter received.
The Company position remains as outlined in our letter of the 7th October 2005.
The matter is now closed.
Yours sincerely
DUNNES STORES
STEWARD MARTIN
STORE MANAGER.
Mr Dowling B.L. submitted on behalf of the Company that the procedures were never properly utilised. He contended that stages 1 and 2 of the procedure do not comprehend any Union involvement and that this was the clear understanding of both parties to the agreement at the time of its conclusion. Counsel further contended that Stage 3 of the procedure would only come into play after the employees themselves approached the store manger and discussed their grievances directly with him without Union involvement. He submitted that their failure to do so meant that the procedure had not been properly utilised. In consequence, it was submitted, the Union could not contend that the procedure had failed to resolve the dispute.
The Union representative accepted that stages 1 and 2 of the procedure does not allow for direct union involvement. The union do, however, reserve the right to advise and assist their members in processing grievances at these stages. This was made clear to the Company after the agreement was concluded. In the present case the Union had provided the form and had arranged for its members to sign the form. The Union then sent it to the store manager by registered post. The Court was told that the purpose of proceeding in this way was to ensure that a record was maintained of a grievance having been lodged and of the date of lodgement. The Union pointed out that the company had not taken issue with the manner in which the grievance was raised and had responded to the union rejecting the claim.
Conclusion of the Court
Like any industrial relations agreement, the procedure at issue in this case must be interpreted purposively. The clear purpose of stages 1 and 2 is to allow the aggrieved employees and their local manager to resolve issues by direct discussion. This is a common and sensible arrangement, particularly in the case of minor or individual grievances. It seems to the Court that a claim of the type at issue in this case would never be resolved at local level and would inevitably require the involvement of the Union and senior management. Nevertheless, both parties agree that the claim at issue should have been referred in the first instance as a stage 1 grievance and the Court accepts this to be the position.
In this case the management were informed of the claim and of the identity of those associated with the claim. The covering letter from the Union did not seek a meeting or any other form of direct involvement at the initial stage. The Union was merely acting as the agent of its members in conveying the claim or grievance to the manger. The manager could, if he so wished, have discussed the matter with the employees either individually or collectively. He did not do so but wrote directly to the Union rejecting the claim. Thus, if the Union became involved at that stage, it was at the instance of the manager.
What is clear beyond argument is that the manager accepted the grievance and did not take any issue with the mode of lodgement. The manager dealt with the matter in his letter to the Union dated 7th October 2005, by which he emphatically rejected the claim. The Union then sought to progress the matter to the next stage in the procedure. The manager refused to do so, not because of how the claim was lodged, but because the Company would not countenance such a claim.
It is thus clear that the management refused to follow the procedure through it's sequential stages. It is well settled that in such circumstances a procedure must be deemed to have been exhausted (see, for example, Section 9(3) of the Industrial Relations Act 1990). It follows that the procedure at issue in this case was exhausted and that it failed to resolve the dispute. Accordingly the condition precedent to the Court’s jurisdiction specified by the second limb of Section 2(1)(a) of the Act has been met. Since no other objection has been taken in relation to the other conditions specified at Section 2 of the Act the Court is satisfied that the said conditions have been met and that the Court has jurisdiction to investigate the within dispute.
Substantive Issues
Section 5(2) of the Act provides that a recommendation made by the Court shall not provide for arrangements for collective bargaining. The Court cannot and does not recommend that the parties engage in collective bargaining in relation to terms and conditions of employment and nothing contained in this recommendation should be construed as providing for collective bargaining.
Subject only to that restriction the Court is required to give its opinion on the matter under investigation and, where appropriate, its view as to the action which should be taken having regard to the terms and conditions of employment, and to the dispute resolution and disciplinary procedures, in the employment concerned.
Procedural Agreement
By its first claim the Union is seeking a recommendation 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 the 1996 Agreement are well known and are a matter of record. The 1996 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 agreement 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 recommends that both parties observe the terms of the agreement in the processing of staff grievances. Should any disagreement or dispute arise in relation to the interpretation of the agreement, the parties should jointly referring the matter to the Court under Section 7 of the Industrial Relations Act 1969.
Disturbance.
The Court does not recommend concession of the Union’s claim for a disturbance payment.
Canteen facilities
The Court recommends 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
3rd February, 2006______________________
JBChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.