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 : LITTLE RASCAL CRECHE (REPRESENTED BY MR MICHAEL O'SULLIVAN ) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Referred from The Labour Relations Commission under The Industrial Relations (Amendment) Act, 2001, as amended by The Industrial Relations (Miscellaneous Provisions) Act, 2004.
BACKGROUND:
2. Little Rascal Creche is situated in Rochfordbridge, Co. Westmeath. It employs approximately 15 staff, mostly part-time. In February, 2006 staff sought and were granted membership of SIPTU. The Union wrote to the Company on behalf of some members of staff on the 14th February making a number of claims. No reply was received. The Union then referred the dispute to the Advisory Service of the Labour Relations Commission under the Code of Practice on Voluntary Disputes Resolution, S.I. No. 176 of 2004 on the 9th March, 2006. The issues in dispute were:
- Rates of Pay;
- Hours of work and rosters;
- Sick Pay Scheme;
- Annual Leave and payment for public holidays; and
- A comprehensive agreement which would include Grievance and Disciplinary Procedures in accordance with S.I. No.1 46 of 2000.
The Advisory Service held a meeting with the parties on 20th April, 2006 at which most of the above issues were resolved. The only issue left outstanding was an increase in the Rates of Pay.
The dispute was then referred to the Labour Court on the 28th April, 2006 in accordance with Section 2(1) Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004. A Court hearing was held on the 11th July, 2006.
At the hearing, the Company raised as a preliminary issue, that the conditions precedent to the Court's jurisdiction specified at Section 2(1) of the Industrial Relations (Amendment) Act, 2001, had not been met. The Company claimed that it is its practice to engage in collective bargaining `negotiations with its staff. The Company further claimed that it meets with staff on a regular basis (every week) to discuss employment matters. It claims this constitutes collective bargaining. The Company also stated that it had no dispute with its employees. The Court considered the preliminary issue as part of the hearing of the substantive case.
UNION'S ARGUMENTS:
3.1 The Union argued that there is a trade dispute between the parties in that the Company has refused to negotiate or recognise the Union. The Union further contends that staff members were pressurised by the Company into signing a declaration stating they were not individually or collectively in dispute regarding rates of pay under treat of the creche closing. One member stated in Court that she was in dispute with the Company regarding rates of pay.
2. The Union believes that rates sought of €10.14 for qualified staff and €8.60 for unqualified staff are fair, and when compared with similar employments can be seen as reasonablegiven that staff are charged with the early education and formation of children.
3. The Union gave examples of rates of pay in the order of €14.40 for Health Care Assistants, and €18.00 for Special Needs Assistants. It claims that the current rate of €8.00 per hour is low compared to similar type jobs.3.It is the Union's understanding that the Employer intends to honour the terms of the new national wage agreement and has already implemented the 1st phase of 3%. This decision by the employer does not alter the Union's claim, as they expect the terms of the national wage agreement when due, be applied to the rate being sought.
4.1 The Company maintains that no dispute exists between the staff and management. Both parties manage their affairs in a constructive manner and all grievances and disputes can and have been addressed through the staff meetings, (every 6 weeks). In addition there is the facility at all times for an individual member of staff to process any grievance in accordance with the procedures as outlined in the Code of Practice on Grievance & Disciplinary Procedures, S.I. No.146 of 2000. No such request has been made regarding wage rates since the start of June 2006, when management implemented the pay increases outlined in their submission to the Court.
2. Fees charged in the Dublin region are twice what can be charged in a rural setting such as Rochfortbridge, i.e. in Dublin fees can be €300 per week, as against €160 in Little Rascals.
3. All staff at Little Rascals can avail of free childcare which is a considerable additional financial benefit to each employee in addition to pay.
4. Staff have a fully subsidised canteen. There is also significant flexibility afforded to staff such as time off to attend school meetings etc.
5. The Company considers that the current hourly rate of €8.25 per week (inclusive of 3% national agreement) is a fair and reasonable reward given the location of the Cr�che and the other benefits to staff.
RECOMMENDATION:
The Employer contended that the conditions precedent to the Court’s jurisdiction specified at Section 2(1) of the Industrial Relations (Amendment) Act 2001, as amended (the Act) have not been met. The Employer further contended that it has no trade dispute with its employee.
In accordance with Section 3 of the Act, the Court decided to deal with the issue of jurisdiction as part of the investigation.
Existence of a Trade Dispute.
Before embarking on an investigation under the Act, the Court must first be satisfied that a trade dispute exists between the parties. The only issue before the Court relates to the rates of pay. The Employer contends that it made an offer to increase rates of pay directly to its staff, which it claims was accepted. The Employer produced a document signed by 10 of its staff confirming their acceptance of the offer in settlement of the claim.
The Union contended that staff members were pressurised by the employer into signing the form under treat of the Creche closing. The Union did however contend that one of its members, who was present at the hearing, had not signed the document in question and remained in dispute with the Employer. This worker confirmed to the Court that she had not accepted the Employer's offer of improved pay in settlement of her dispute.
In these circumstances it seems to the Court that there is a dispute or difference between the Union and the Employer concerning the pay of at least one worker and that dispute is a trade dispute within the meaning of the Act.
Collective Bargaining Negotiations
The Employer contended that it is its practice to engage in collective bargaining negotiations with its staff. The Representatives of the Employer told the Court that the management meet with staff on a regular basis and discuss matters affecting their employment. This, it was submitted, constitutes collective bargaining.
The Act does not define what is meant by the term collective bargaining. However the Court has formulated a working definition of the terms inAshford Castle and SIPTU[2004] 15 ELR 214as follows:
- 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.
In the instant case what was described to the Court by the Employer could not amount to collective bargaining properly so called. It is mere consultation on employment related issues which is not structured in any way and does not involve the conclusion of collective agreements on the maters discussed. Moreover there are no designated employee representatives nor are there any arrangements in place by which employees could formulate their position on issues or make claims. In these circumstances the Court is satisfied that it is not the practice of the employer to engage in collective bargaining within the meaning of Section 2(1) of the Act.
Internal procedures.
The Employer claimed that internal procedures had not been availed of in seeking to resolve the dispute prior to its reference to the Court. The Employer could not provide the Court with details of any disputes resolution procedure normally availed of by the parties to the dispute. The Union contends that no such procedure exists.
Having considered the submissions of both sides the Court accepts that there are no internal disputes resolution procedures within the employment which are normally availed of by the parties.
Conclusion
The Court is satisfied that the conditions specified at Section 2(1) of the Act have been met. The Court is further satisfied that a trade dispute exists between the Union and the Employer in respect of at least one worker. Accordingly the Court is satisfied that it has jurisdiction to investigate this dispute.
Substantive issues
The only issue before the Court relates to rates of pay. On this matter the Court recommends as follows:
| Rates per Hour | Unqualified Childcare Worker | Qualified Childcare Worker |
| On Start | €8.24 | €9.15 |
| Meet Standard Performance | €8.48 | €9.18 |
| Above Standard Performance | €8.77 | €9.45 |
These rates should be exclusive on any increases which may become due under any national partnership agreement yet to be ratified.
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
24th July, 2006______________________
JBChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.