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 : JOHNSTON, MOONEY & O'BRIEN - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGee 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. The Company employs approximately 200 staff at two locations and produces a range of products for the retail and catering outlets nationwide. The Union wrote to the Company in July, and September, 2005, advising Management that a number of workers had been accepted into Union membership. The Union sought a meeting with the Company to discuss a number of issues as follows:
Company Union agreement
Pension Scheme
Sick Pay Scheme
Service Recognition
Overtime Rates
Christmas Bonus.
The Company responded that it had a policy of dealing with workers directly through a Works Committee. This was not acceptable to the Union. The dispute was referred to Advisory Service of the Labour Relations Commission under the provisions of the Code of Practice on Voluntary Dispute Resolution (S.I. No. 76 of 2004). The Company met with the Advisory Officer of the LRC but stated that it considered that the relevant legislation did not cover the Company's circumstances and it did not engage further in the process. On the 2nd November, 2005, the Union submitted an application to the Labour Court for an investigation of the dispute under the Industrial Relations( Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004. A Court hearing was held on the 15th December, 2005.
UNION'S ARGUMENTS:
3. 1. The Union is seeking that all employees should be issued with a Booklet / Handbook detailing all the procedures and policies that apply within the employment. The Booklet/ Handbook should contain, inter alia, all the rights and entitlements for workers under current legislation.
2. There is no pension scheme currently available to workers in the employment. There is in existence a defined contribution scheme available to certain employees. The Union is seeking that either this scheme is opened up to workers or an alternative defined contribution scheme is set up. Contributions of up to 6% of basic pay by workers should be matched by the Company.
3. The Union is seeking the introduction of a sick pay scheme in the Company, that will provide workers with 6 full weeks' pay and six half weeks pay on an annual basis. The Court has previously recommended in favour of similar or better schemes. (LCR's 17358 and LCR 17908 refer).
4. The Union is seeking additional annual leave linked to service as a reward for those workers with long service in the employment as follows;
One additional days' leave after two years service
Two additional days leave after three years service
Three additional days leave after five years service
5. The Union is seeking that all workers who work on a sixth day be paid for that day as an overtime day (time plus one half). Most sections within the employment receive overtime payments for overtime in excess of 39 hours. The Union seeks that the overtime after 39 hours be applied to all workers in all categories of employment within the Company.
6. The Union is seeking the payment of a Christmas Bonus equivalent to three weeks' wages for all members. This bonus can be linked to service, payable only to those workers with in excess of three years' service.
COMPANY'S ARGUMENTS:
4. 1. The Company is in the process of agreeing a comprehensive set of plant rules and regulations with the Works Committee and accepts that a Booklet /Handbook which will include all legislative issues should be provided to all workers in the employment.
2. The Company is in the process of negotiations with the Works Committee and the Company's pension proposals are before that body at present. The scheme will commence on 2nd April , 2006.
3. The Company does not have a sick pay scheme. The Company gives consideration to cases on an individual basis.
4. The Company is not considering the application of additional annual leave in respect of long service. Employees receive one extra days' leave at Christmas.
5. Drivers are paid a rate of €13.39 for all hours worked, it is not based on actual hours but on agreed hours for a particular route. In addition all drivers are paid a daily meal allowance of €16.29 net. The Company's pay rates and other terns and conditions of employment are equal to and in most cases are in excess of its competitors
RECOMMENDATION:
Decision:
Preliminary points on Jurisdiction: -
Existence of a Trade Dispute:
The Company contends that there is no trade dispute in existence between it and those of its employees who are represented by the Union. It submits that the real motive or reason for the Union’s conduct is to bring about a state of affairs in which the Company will be required to engage in collective bargaining with the Union. Thus, it contends, the issues referred to the Court are not the subject matter of a bona fide trade dispute.
The appropriate definition of the term “trade dispute” for the purpose of the 2001 Act is that contained in 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 with the conditions of employment, of any person;”
It is clear that the Union wrote to the Company on a number of occasions in 2005 raising various issues relating to the terms and conditions of employment of its members. The Court is fully satisfied that in raising those issues the Union was acting for, and on the authority of, its members employed by the Company. Those issues remain unresolved. They are clearly matters of difference between the company and those of its employees who are members of SIPTU. It is equally clear that they are connected with the conditions of employment of those persons. The Court has no reason to believe that the Union’s objective or purpose in raising those issues with the Company was other than to obtain improvements in the conditions of employment of its members.
It may well be that the Union does have an ambition to obtain recognition for collective bargaining purposes. However, as was pointed out by Hanna J inRyanair Ltd V The Labour Court and Others, High Court, Unreported 14th October 2005, the alleged ambitions of a Union are not material matters to be taken into account in determining whether there is a trade dispute. (see also the Judgment of Murphy J. to the same effect inNolan Transport (Oaklands) Ltd v Halligan Ltd and Others, [1998] ELR 177).
The Court is fully satisfied that the substantive issues raised by the Union in this referral are appropriate subject matter of a trade dispute which, subject to the requirements of Section 2 of the Act being met, the Court is entitled to investigate.
Section 2(1)
The Court’s jurisdiction to investigate the instant dispute is dependent on the requirements of Section 2 of the Act being met. Section 2(1)(a) 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 –
Paragraph (a) of subsection 1 embodies two requirements. The Court must first be 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. The second limb of this paragraph requires the Court to be satisfied that the internal disputes procedures (if any) normally used by the parties have failed to resolve the dispute. Both of these requirements must be met as a condition precedent to the Court’s jurisdiction.
In considering the questions posed by Section 2(1) of the Act the Court must have primary regard to the factual matrix existing at the time of the hearing. This was made clear by Hanna J. inRyanair v The Labour Courtwherein he stated: -
- “ 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 subparas (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….”
Collective Bargaining- First limb of Section 2(1)(a)
The expression “Collective Bargaining” is not defined by the Act. However in LCR 17675SIPTU v Ashford Castle[2004] 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 the Company’s contention that it engages in collective bargaining negotiations with a works committee representative of its employees. In support of this contention the Company provided the Court with information concerning the business transacted by this committee, including minutes of its meetings with management. It is clear to the Court from the information provided that this body is involved in discussions with management on matters pertaining to employment. However, there is nothing to indicate that it has ever concluded a collective agreement or that the outcome of its engagement with the company is validated by the generality of employees through a ballot or other form of decision-making. The Court has not been furnished with any formal constitution of this body nor any evidence that it is a creature of the workforce rather than of the employer. In that regard it is noteworthy that the documentation emanating from the works committee, which was furnished to the Court, is signed by a senior manage of the Company. Moreover, the minutes of meeting of this committee indicate that the main business involves questions from the worker members and answers from management.
Having considered all of the evidence on this point the Court has come to the clear conclusion that this body is essentially consultative in nature and its engagement with the company could not be properly classified as collective bargaining as that term is generally understood.
That conclusion would be sufficient to dispose of the point arising from the first limb of Section 2(1)(a). However there is another point of relevance which should be addressed. In his submission and in the course of argument Counsel for the Company contended that the works committee is an Excepted Body within the meaning of Section 6(3)(h) of the Trade Union Act 1941, as amended, and thus lawfully entitled to engage in negotiations on wages and conditions of employment. That Section defines an Excepted body as including, inter alia, : -
- “[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)."
Clearly a committee which negotiates for workers who are not members of the committee cannot come within that definition. However a group or body of workers can constitute themselves for the purpose of conducting negotiations. If the employer agrees to negotiate with them they thereby become an excepted body (see Judgment of Fennelly J. inIarnrod Eireann v Holbrooke 1 I.R 237). Such a body could delegate responsibility for the actual process of negotiating to a committee of their own number which could lawfully engage in negotiations as the agent of the excepted body. What is, however, clear beyond argument from the plain language of Section 6(3)(h) of the Act of 1941 is that an excepted body may negotiate for its own members but not for other employees.
Section 2(1)(a) of the Act of 2001 refers to collective bargaining negotiations in respect of the grade, group of category or workers who are party to the trade dispute. The workers who are party to the instant dispute are those represented by the Union. They wish to be represented in collective bargaining by the Union and it is clear that they have neither mandated nor authorised any other body to negotiate with their employer on their behalf. In these circumstances it could not be logically contended that even it the works committee negotiates on behalf of an excepted body (and the Court is satisfied that it does not) it could not do so in respect of those workers who are party to the dispute before the Court and who are patently not members of any such excepted body.
For these 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.
Internal Disputes Resolution Procedures – second limb of Section 2(1)(a).
The second limb of this paragraph provides, in effect, that the Court must be satisfied that any internal dispute resolution procedures normally availed of by the parties has failed to resolve the dispute. That implies that any such procedures must first have been utilised in seeking to resolve the dispute. The language of the paragraph indicates that any procedure relied upon must have two essential characteristics before it can come within the intendment of the statutory requirement. The procedure must be (a) a disputes procedure, and it must (b) normally be used by the parties to the dispute. In respect to the latter point 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 not evidence whatsoever before the Court to indicate that the workers who are party to the instant dispute have ever regarded the works committee as providing or constituting a procedure for resolving disputes or that they have normally used it as such. As the Court has already held, the works committee is a consultative body and there in nothing in its make-up or its practice to indicate that it acts as a disputes resolution body as that term is normally understood in the conduct of industrial relation.
For these reasons the Court is satisfied that the requirements of the second limb of Section 2(1)(a) are fulfilled.
No other issues have been raised in relation to the other conditions precedent to the Court jurisdiction specified at Section 2(1), paragraphs (a) to (d) inclusive. Accordingly the Court is satisfied that the requirements of the said Section 2 have been met and that it has jurisdiction to investigate this dispute.
Substantive Issues:
The Court has given careful consideration to the submissions of the parties on the substantive issues in dispute. 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.
The following are the recommendations of the Court: -
Terms and Conditions of Employment.
The Employer should provide each employee with a statement of the particulars of their contract of employment in accordance with the requirements of the Terms of Employment (Information) Act 1994.
Grievance and Disciplinary Procedure
The Union claimed that the current internal procedures for the processing of issues relating to individual grievances and disciplinary matters are inadequate in that they do not provide for representation of employees by a trade union in appropriate cases.
The employer informed the Court that it intends to review its internal procedures having regard to the provisions of the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). The Court recommends that the employer proceed accordingly. Any dispute concerning the compatibility of the revised internal procedures with the provisions of the Code of Practice should be processed through the procedures of Section 43 (1) of the Industrial Relations Act 1990.
Pensions
The Court notes the Employer’s commitment to the introduction of a pension scheme with effect from April 2006. The Court welcomes the Employers commitment in that regard. It is recommended that a defined contribution scheme, with a contribution rate of 5% from the Employer and 5% from the employee, be introduced from the date proposed.
Sick Pay
The Court recommends that a sick pay scheme be introduced which provides for four weeks full pay in any year less social welfare benefits. There should be no entitlement to benefit in respect of the first three days of any illness. The scheme should commence on 1st July 2006 and should be applicable to all employees with at least 12 Months service.
Overtime Rates:
The Court recommends that overtime be paid after 39 hours worked in any week regardless of whether it is voluntary or compulsory. The rate of overtime should be: -
�Time + one-half for all time up to midnight and double time thereafter, Monday to Friday,
�Time + one-half for first four hours on Saturday and double time thereafter
�Double time for all time worked on Sunday.
Shift Pay
The rate in respect of shift working should be €16.50 per shift with effect from 1st April 2006.The attention of the parties is drawn, in the long term, to the norms in this area.
Public Holidays
Entitlements in respect of public holidays should be in accordance with Section 21(1) of the Organisation of Working Time Act 1997.
Sunday Premium
Sunday working which is not rostered should be paid for at the rate of double time (as previously provided). Where Sunday working is rostered the current premium of €52.14 should apply.
Health and Safety Issues
In respect of issues of health and safety, the provisions of the Safety, Health and Welfare at Work Act 2005, and any other legislative or legal requirements howsoever arising should be strictly adhered to by all parties.
Service Recognition and Christmas Bonus
The Court does not recommend concession of the Union’s claims under these headings.
Signed on behalf of the Labour Court
Raymond McGee
19th January, 2006______________________
TOD/BRDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.