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 : GREEN ISLE FOODS (BOYLE) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Preliminary hearing in relation to a 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 workers first approached the Union in 1992 seeking representation and also again in 1996. In January, 2004, the Union wrote to the Company to discuss rates of pay and conditions of employment. Following correspondence between the parties the Union referred its case to the Advisory Service of the Labour Relations Commission. However, as no progress was made the case was then referred to the Labour Court. It is the Union's contention that the Company only applies the National Wage Agreement and that it does not negotiate or conduct collective bargaining. The Company's case is that it engages fully with employees through their democratically elected representatives, the Staff Representative Group (SRG). (It gave examples of negotiations between the Company and the SRG.)
A Labour Court hearing took place on the 20th January, 2005. The case was put on hold. On the 20th of October, 2005, the Union wrote to the Court expressing concern about a number of issues, one of which was that the SRG was now defunct. A second hearing took place on the 29th of November, 2005, in Castlebar. The following is the Court's recommendation:
DECISION:
Preliminary Objection.
The employer raised a preliminary objection to the jurisdiction of the Court on grounds that no trade dispute exists between it and its staff. It further contended that the conditions specified at Section 2(1)(a) of the Act have not been fulfilled. The employer’s representative made a submission to the Court in support of the objection.
In accordance with Section 3 of the Act the Court considers it appropriate in this case to hold a preliminary hearing to determine whether or not the requirements specified in Section 2 have been met.
Section 2(1)(a)
Section 2(1)(a) states that the Court may investigate a trade dispute where the Court is satisfied that -
“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 Company contends that no dispute exists between it and its employees or their elected representatives. The Company further contended that it is its practice to engage in collective bargaining through a body know as the Staff Representative Group (SRG) in respect of the“grade, group or category”of workers who are party to this referral. The Company informed the Court that the SRG was a democratically elected body, which had been in existence since 1991 and that employees had voted to conduct collective bargaining through it rather than be represented by the Union. The Company stated that both the SRG and the Company operate independently in any such negotiations. An appeals process is provided, chaired by an independent third party – a former Chairman of the Labour Court. This, it contends, is an internal disputes procedure normally used by the parties concerned within the meaning of the second limb of Section 2(1)(a) of the Act. As that procedure has not been invoked in the instant case the Company submitted that it cannot have failed to resolve the putative dispute. In support of this proposition the Company relied on the Decision of this Court in Banta Global Turnkey (DECP041).
The Company stated that the SRG had negotiated changes to the Company Pension Scheme, payment of all National Pay Agreements and many additional benefits – including the early payment of Sustaining Progress, improvements to the sick pay scheme, extra annual leave, increases in the value of product vouchers/Christmas vouchers, improved flexibility rates and improved overtime benefits.
The Company contended that the SRG is an excepted body as defined in the Trade Union, Act 1941, section 6(1) and (3) and amended by Section 2 of the Trade Union, Act 1942
The Company stated that staff representatives on the SRG are mandated to act in the interest of all employees on general terms and conditions of service. They do not act for individual employees. They have access to training and facilities to help them discharge their duties. The procedures of the SRG are audited regularly.
The Company also stated that the employees democratically elected representatives on the SRG confirmed that there were no outstanding issues in relation to rates of pay, shift premium and the internal grievance procedures of the Company - the issues referred by the Union to the Court under the Act. The Company did not accept that there was a “trade dispute” within the meaning of section 2(1) (a) of the Act. It contended that if there was a dispute then it is capable of being dealt with in accordance with the procedures of the SRG including the appeals mechanism.
Accordingly, the Company submits that the Court is precluded from investigating a dispute where the Union is seeking to represent workers in a grade, group or category, which the Company recognises and negotiates with through the SRG for the purposes of collective bargaining.
The Union’s Position
The Union stated that it is not the practice of the Company to negotiate or to conduct collective bargaining; it makes changes to conditions of employment without negotiation or agreement; it does not negotiate with the SRG on rates of pay, but simply applies the terms of national pay agreements. The Union contends that the SRG was set up by management for the purposes of discussion only; it does not include the right to ballot and or reject any position put forward through the SRG. Terms put forward through the SRG are imposed on the workers without agreement. Training is not provided.
The Union contends that the Constitution of the SRG specifically states that its purpose is to act as a forum for communication and consultation in respect of decisions already taken by management and not to take part in collective bargaining. The SRG cannot process matters through the States third party industrial relations machinery. Therefore, the Union contends that the Company does not engage in collective bargaining as that term is understood.
The Union outlined the steps taken by its members to process their grievance internally. It stated that they had tried to raise these issues as far back as 1992 with the assistance of the Union. When this failed they tried in 1996 to raise the issue through the SRG and having failed, they sought the assistance of the Union, but again were unsuccessful. They were also unsuccessful in 2004 when the matter was raised again. The group of members who are party to this claim state that they do not wish to be represented by the SRG. The Union further pointed out that of the category or grade of workers in dispute with the Company, the Union now represented 45 of the workers whereas only 13 workers continued to be part of the SRG.
Findings of the Court
There are three issues for consideration in this preliminary application, namely: -
(i) Is there a trade dispute in existence between the parties which the Court can investigate.(ii) If the answer to (i) is in the affirmative, is it the practice of the Company to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the dispute and, in that regard, is the SRG an excepted body within the meaning of Section 6 of the Trade Union Act 1941.
(iii) Have the internal dispute resolution procedures (if any) normally used by the parties concerned failedto resolve the dispute.
The Approach of the Court
Since this dispute was referred to it, the Court gave its decision on broadly similar issues in the case ofIMPACT v Ryanair[2005] 16 ELR 99. The Respondent in that case subsequently sought an order by way of Judicial Review quashing the decision of the Court. InRyanair v The Labour Court and IMPACT, High Court, Unreported 20th October 2005, Hanna J provided welcome clarification on the construction and application of Section 2 of the Act. That decision of the High Court is under appeal by Ryanair. Nevertheless this Court is obliged by the doctrine of precedent to apply the propositions of law adopted by Hanna J in that case in so far as they formed part of the reason for the decision.
In considering the approach which the Court should take in applying Section 2, Hanna J stated as follows: -
- “ It would have to be satisfied that a trade dispute existed and thereafter it would have to turn its attention to those material parts of subs. 1 of s. 2, being subpara. s (a) to (d) inclusive of the Industrial Relations (Amendment) Act, 2001 as amended. These are questions of fact to be resolved by the Labour Court. It is important to note that they are couched in the present tense and whereas the Labour Court must have regard, inter alia, to the history of relations between the parties before it, its primary focus is the actuality on the "shop floor” as it were. Of course, if the Labour Court is not satisfied that a trade dispute exists it cannot proceed to determine the issues of fact posed by subs. 2….”
It is clear from this passage that where the matter is contested the Court should first consider if a trade dispute exists between the parties. If it finds that there is such a dispute the Court should go on to consider the other issues referred to at subparagraphs (a) to (d) which are in contention. In so doing Hanna J has made it clear that, while regard must be had to the history of relations between the parties, the primary focus must be on the factual matrix existing at the time the matter comes to be considered by the Court rather than on what the position may have been in the past.
The Court has adopted that approach in the instant case and has reached the following conclusions; -
(i) Is there a trade dispute in existence?
The appropriate definition of the term “trade dispute” for the purpose of the 2001 Act is that contained at Section 3 of the Industrial Relations Act 1946, as follows: -
- “The expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of employment, or with the conditions of employment, of any person;”
It is clear to the Court from the submissions made to it and from the correspondence which passed between the parties that SIPTU have raised issues in relation to pay and conditions of employment with the Company. It is equally clear that as of the date of the hearing before the Court those matters remain unresolved. The Court has no doubt that in raising those issues with the Company SIPTU was acting for and on the authority of members of the Union who are employed by the Company. These are clearly matters of dispute or difference between those represented by SIPTU and their employer and constitute the subject matter of a trade dispute. Consequently, the Court is satisfied that, subject to Section 2(1) (a) to (d), a trade dispute exists between the parties herein which is capable of investigation by the Court.
(ii) Is it the practice of the Company to engage in collective bargaining?
The expression “Collective Bargaining” is not defined by the Act. However inSIPTU v Ashford Castle[2004] 15 ELR 214 the Court formulated the following working definition of the term: -
- “A central question which arises for consideration is the meaning of the term “Collective Bargaining Negotiations” as it appears in the subsection. The expression is not defined in the legislation nor is it defined in any other Irish industrial relations statute of which the Court is aware. It is not a legal term of art but it is a commonly used term in the conduct of industrial relations. In the absence of any statutory definition of the term the Court must assign to the expression the meaning, which it would normally bear in an industrial relations context.
- Collective bargaining comprehends more than mere negotiation or consultation on individual employment related issues including the processing of individual grievances in relation to pay or conditions of employment. In the industrial relations context in which the term is commonly used it connotes a process by which employers or their representatives negotiate with representatives of a group or body of workers for the purpose of concluding a collective agreement fixing the pay and other conditions of employment applicable to the group or collective of workers on whose behalf the negotiations are conducted.
Normally the process is characterised by the involvement of a trade Union representing workers but it may also be conducted by a staff association which is an excepted body within the meaning of the Trade Union Act 1941, as amended. However, an essential characteristic of collective bargaining, properly so called, is that it is conducted between parties of equal standing who are independent in the sense that one is not controlled by the other.”
- Collective bargaining comprehends more than mere negotiation or consultation on individual employment related issues including the processing of individual grievances in relation to pay or conditions of employment. In the industrial relations context in which the term is commonly used it connotes a process by which employers or their representatives negotiate with representatives of a group or body of workers for the purpose of concluding a collective agreement fixing the pay and other conditions of employment applicable to the group or collective of workers on whose behalf the negotiations are conducted.
It is clear from the Judgement inRyanair v the Labour Courtthat the question of whether a practice relied upon as constituting collective bargaining can properly categorised as such is essentially one of fact and degree.
The Company contends that collective bargaining negotiations are conducted through its SRG. The Court has been provided with a copy of the constitution of that body and has heard evidence in relation to its operation. From the evidence adduced it is clear that the SRG was established by the Company and its constitution was formulated and promulgated by the Company. In the final draft constitution dated 4/12/01 the aims and objectives of the body are recited as being: -
- “……[T]o provide a means of communication and consultation between the management and staff of the company on all matters of mutual interest ………..”
The document goes on to provide an indicative list of issues which may be discussed by the SRG. Significantly, this list does not contain any reference to pay.
This constitution provides that the Chairman of the body must be a senior manager appointed by the Company. Nominations for employee representatives are made to the Chairman (Rule 4) and elections are supervised by two returning officers under the control of the Chairman (Rule 3). Staff representative are limited in the number of terms which they may serve but there appears to be no such limitation on management representatives or the Company appointed Chairman. The outcome of the SRG’s deliberations is communicated to staff by management (Rule 11).
Against that background the Court is satisfied that the SRG is a creature of the employer and that it is substantially under the superintendence of the employer. In consequence its proceedings lack the degree of independence which is an essential characteristic of collective bargaining properly so called. Moreover, the SRG does not conclude collective agreements nor is the outcome of issues raised at the SRG subject to validation by the generality of staff through any form of decision-making process. In that regard it is noted that Rule 11 of the constitution provides that the minutes of SRG will be “briefed” to all staff at team briefings and staff will have an opportunity to ask questions. This further confirms that the body is essentially a forum for consultation and the provision of information but not for collective bargaining.
Finally, it emerged in the course of he hearing that the SRG is now effectively representative of only two categories of staff accounting for approximately 13 employees. The remaining staff, 45 in number, are members of SIPTU and have effectively dissociated themselves from the SRG. In these circumstances there could be no basis in law or in logic upon which it could be held that the SRG holds any mandate to negotiates in respect of the majority group who are party to the dispute before the Court.
Accordingly, the Court accepts that it is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category who are party to the trade dispute referred for investigation.
The Court’s finding on this point is sufficient to dispose of the points arising under the first limb of Section 2(1)(a). However the parties advances extensive arguments on whether or not the SRG is capable of being an Excepted Body within the meaning of the Trade Union Act 1941, and thus lawfully entitled to conduct negotiations on pay and conditions of employment. While it is not strictly necessary for it to do so, for the sake of completeness the Court considers it desirable to proceed to consider this aspect of the case.
An Excepted Body.
Section 6(1) of the Trade Union Act 1941 makes it unlawful for a body of persons, not being an excepted body, to carry on negotiations for the fixing of wages or other conditions of employment unless such body is the holder of an negotiation licence. InImpact v Ryanairthis Court considered the combined effect of that provision and Section 2(1)(a) of the Act and concluded as follows: -
- Whilst collective bargaining negotiations may have a more specific connotation it undoubtedly involves negotiation for the fixing of wages and conditions of employment. Thus, it can only be lawfully conducted by an authorised trade union or an excepted body. It is to be assumed that the reference to collective bargaining negotiations in the 2001 Act is not intended to comprehend collective bargaining unlawfully conducted.
“If a body does not hold a negotiation licence and is not an excepted body, an employer cannot engage in collective bargaining with that body”.
The principal defining characteristic of an excepted body is that it actually carries on negotiations on pay and conditions of employment (see the Judgment of Fennelly J. inIarnrod Eireann v Holbrooke[2001] 1 I.R 237).If a body does not carry on such negotiations it cannot be an excepted body. In light of the Court’s findings on this point the SRG does not meet that essential requirement. There are, however, other reasons why the SRG could not be regarded as an excepted body.
In its submission to the Court the Company contended that the SRG came within the definitions of an excepted body contained at Section 6(3)(a) of the Trade Union Act 1941, which provides as follows: -
( a ) a body which carries on negotiations for the fixing of the wages or other conditions of employment of its own (but no other) employees,
The counterpart of this provision for employees is at Section 6(3)(h) of the 1941 Act which was inserted by Section 2 of the Trade Union Act 1942. This subparagraph provides as follows: -
- "The expression ‘ excepted body’ shall include a body all the members of which are employed by the same employer and which carries on negotiations for the fixing of the wages or other conditions of employment of its own members (but of no other employees)."
- "The expression ‘ excepted body’ shall include a body all the members of which are employed by the same employer and which carries on negotiations for the fixing of the wages or other conditions of employment of its own members (but of no other employees)."
- I think that the amendment made by section 2 of the 1942 Act was designed to cover a causus omissus arising from section 6 of the 1941 Act. The 1942 amendment mirrors, for employees, what was already contained for employers in the Act of 1941. The 1941 exceptions include at section 6(3)(a) :
- A bodywhich carries on negotiations for the fixing of wages or other conditions of employment of its own (but no other) employees.
- I think that the amendment made by section 2 of the 1942 Act was designed to cover a causus omissus arising from section 6 of the 1941 Act. The 1942 amendment mirrors, for employees, what was already contained for employers in the Act of 1941. The 1941 exceptions include at section 6(3)(a) :
The Act of 1942 adds:
- A body all the members of which are employed by the same employer andwhich carries on negotiations for the fixing of wages or other conditions of employmentof its own members (but no other employees).
- The 1941 version had omitted to provide for the employee counterpart of the employer conducting negotiations in-house. It was obviously desirable that employee bodies be not left exposed while employers were covered by an exception.
In the Court’s view this alternative definition is equally inapplicable to the SRG (or any similar body). An excepted body within the meaning of Section 6(3)(h) is restricted to negotiating the pay and conditions of its own members and no other employees. What the Company claims is that the membership of the SRG negotiates for the entirety of non-management grades within employment. If that were so it could not be a body which“negotiates for its own members (but no other employees).”
Section 6(3)(h) was intended to accommodate a situation in which a body of workers combine to negotiate with their employer on behalf of their own number and no others. If the employer agrees to negotiate with that body of persons they thereby come within the definition of an excepted body and are thus relieved of any illegality in conducting negotiations. The body could, of course, appoint a committee of its own members to conduct the negotiations for them and the committee could lawfully do so as agent of the excepted body. It is clear, however, from the plain wording of Section 6(3)(h) that such an excepted body could not purport to negotiate either directly or through its delegated committee in respect of employees who are not amongst its members.
The membership of a“body of persons”contemplated by Section 6(3)(h) must be confined to those who voluntarily combine for the mutual purpose of negotiating with their employer through an excepted body. It could not include those who do not wish to be part of that collective. In this case some 45 employees who are party to this dispute no longer wish to be represented on the SRG but rather by SIPTU. They are clearly not part of any body of persons which is an excepted body within the meaning of Section 6(3)(h) of the 1941 Act.
Collective bargaining can only be conducted consensually. Hence, even if it could be accepted that the SRG engages in collective bargaining negotiations (and the Court is satisfied that it does not) it patently could not do so in respect of those who are party to the present dispute. That group have neither consented to nor mandated that body to represent them in any dealings with their employer, or if they had given such consent in the past it has plainly been withdrawn. As Hanna J pointed out inRyanair v The Labour Courtif one party insists on being represented by a Trade Union and the other refuses to talk to that Union because it is a Union that is the antithesis of consensus.
For all of the foregoing reasons the Court is satisfied that it is not the practice of the employer to engage in collective bargaining negotiations in respect of the group of workers who are party to the instant dispute.
(iii) Have the internal dispute resolution procedures (if any) normally used by the parties concerned failed to resolve the dispute?
The second limb of Section 2(1)(a) requires, as a condition precedent to jurisdiction, that the Court be satisfied that the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute.
The Company contended that the mechanism of the SRG constitutes a dispute resolution procedure which has not been utilised and exhausted in seeking to resolve the issues raised by the Union. The Company further contend that there is an appeals process available in the event of any issues in dispute not being resolved through the SRG.
The Union restated its conviction that the SRG is merely a forum for discussion and is not a disputes procedure. They nonetheless submitted that the claim for increases in pay was raised at the SRG in November 2004 but the matter was not resolved to the satisfaction of its members. The Union further contended that the appeals process referred to by the Company has never been activated.In order to come within the intendment of this provision the procedure relied upon must be one which isnormallyused by thepartiesto the dispute. The term “parties” has given rise to some difficulties of interpretation in the past. However inImpact v Ryanairthe Court held as follows: -
- The second limb of s.2(1)(a) requires the Court to be satisfied that the internal disputes resolution procedures, if any, normally availed of by the parties have failed to resolve the dispute. There was considerable discussion in the course of the hearing as to whether the term parties, as used in the subsection, refers to the parties before the court or to the parties to the trade dispute forming the subject-matter of the investigation. On this point the court is satisfied that in the context in which the expression is used it must relate to the parties to the trade dispute.
The Court adopts that construction of the subparagraph for the purposes of the instant case.
The parties concerned must normally use the putative procedure. The word “normally” connotes something that is routinely and consistently resorted to by the particular parties for the purpose of resolving similar disputes. The policy behind this provision appears to be that if the applicant group have approbated an internal procedure by normal usage over time, they should be required to use that procedure before referring their dispute to the Court. Such an approach is in keeping with good industrial relations practice. In that context it should be noted that the condition precedent is that an internal procedure normally used by the parties, rather than one merely available to them, be utilised. The subparagraph cannot be read as importing the latter formulation which, if intended, could have been easily provided for by the drafters of the legislation.
There is no evidence before the Court from which it could be concluded that the parties to the instant dispute, that is to say the group of employees who are members of SIPTU, have normally used the SRG to advance the resolution of disputes or differences between them and the Company. Rather, the preponderance of evidence indicates that this group have consistently sought to bypass the SRG so as to discuss their differences directly with the Company through their Union. There is, however, evidence from the minutes of a meting of the SRG held on 4th November 2004 that the question of pay increases was raised and discussed. Since the question of pay in now amongst the issues in dispute in this referral, that intervention at the SRG clearly failed to resolve the dispute.
The Company has also referred the Court to the internal appeals arrangements put in place to deal with matters not resolved at the SRG. There is no evidence of this process ever having being used and in consequence it could not be an internal disputes resolution procedure normally used by the parties to this dispute.
In light of these conclusions the Court is satisfied that there are no internal disputes procedures normally used by the parties herein. In consequence the condition precedent to jurisdiction contained at the second limb of Section 2(1)(a) is fulfilled.
Conclusion.
No issue has been taken concerning the other provisions of Section 2(1) of the Act. The Court is thus satisfied that all of the conditions specified by Section 2(1) are fulfilled and that it has jurisdiction to investigate the substantive issues in dispute between the parties. The Court will proceed accordingly.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th January, 2006______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.