LCR18583

FULL RECOMMENDATION

CD/06/379

RECOMMENDATIONNO.LCR18583

INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001,
AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004

PARTIES :

O'CONNOR MEATS LTD
(REPRESENTED BY JOHN CURRAN BL, INSTRUCTED BY FAIR & MURTAGH, SOLICITORS)

- AND -

SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr O'Neill

SUBJECT:
1. Union application under the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.

BACKGROUND:

2. A Labour Court hearing was held on the 18th April, 2006.

RECOMMENDATION:

The dispute was referred to the Court pursuant to Section 2(1) of the Industrial Relations Act 2001, as amended. At the commencement of the hearing the Employer raised a preliminary objection to the Court’s Jurisdiction to investigate the dispute.

In accordance with Section 3 of the Act the Court has discretion to hold a preliminary hearing to determine if the requirements of Section 2 have been met or to determine such questions as part of its investigation. No application was made to the Court to conduct a preliminary hearing pursuant to Section 3. In the absence of such an application the Court advised the parties that the hearing was to deal with both the jurisdictional points and the substantive matters. The Court further advised the parties at the hearing that, in line with its normal practice, it proposed to hear submissions on the jurisdictional point first and reserve its decision thereon. It proposed to then proceed to hear the parties on the substantive issues. Neither party objected to this procedure.

At the close of the hearing Counsel for the Company was invited to respond to the Union submissions on the substantive issues but declined to do so. No application was made for a further hearing nor was any application made for an opportunity to present further submissions. The Court subsequently decided, in ease of the Company, to invite it to make a written submission on the substantive issued in dispute. A written submission was received from the Company dated 4th May 2006. The Court again wrote to the Company by letter dated 8th May 2006, and enquired if they wished to have an opportunity to make an oral presentation of its case. The Company replied by letter dated 15th May 2006 stating that it wished the Court to deal with its jurisdictional point.

The Court has, in these circumstances, addressed all issues arising in this case as part of its investigation under Section 2 of the Act.

Preliminary Issue:

The issue in relation to the Court’s jurisdiction arose in the following circumstances:

By letter dated 3rd February 2006 SIPTU wrote to the Company seeking a meeting to discuss certain terms and conditions of employment of employees of the Company who were in membership of SIPTU. In the final paragraph of this letter the author stated: -

“As it has been my experience that some employers in the locality refuse to negotiate with our Union, I have taken the precaution of asking the Labour Relations Commission for its assistance in conciliation. Naturally, I hope that we will not need to avail of their services and that we will be able to build a working relationship to the benefit of our members and your business”

It transpired that the Union had not referred the putative dispute to the conciliation service of the LRC, as the letter suggested. Rather, the Union had referred the matter to the Advisory Service of the Commission pursuant to the Enhanced Code of Practice on Voluntary Dispute Resolution (SI 76/2004) (the Code of practice). It is clear from correspondence which ensued that the Company took exception to what it regarded as the pre-emptive manner in which the Union invoked the provisions of the Code of Practice. It accused the Union of having acted in bad faith in not allowing it a reasonable opportunity to respond to the request for a meeting.

On 16th February 2006 the Company wrote to the LRC stating, inter alia, that it would meet with SIPTU if it were provided with a list of the Union’s members in its employ. It also insisted that the Union withdraw the case which it had referred pursuant to the Code of Practice. A further condition imposed by the Company was that the Union nominate another official to represent it other than the Official with whom it had corresponded. These preconditions were rejected by SIPTU by letter dated 17th February 2006. It did, however, offer to have its membership within the employment independently verified by the LRC. The Company replied by letter dated 2nd March 2006 repeating its preconditions that it be provided with a list of SIPTU members and that the reference to the LRC be withdrawn.

On 2nd March 2006 the Union referred the matter to the Court pursuant to Section 2 of the Industrial Relations (Amendment) Act 2001, as amended (the Act). The Union then wrote to the Company by letter dated 6th March informing it of the referral. In that letter the Union offered to suspend the process under the Act if the Company agreed to either meet with the Union or to engage with it pursuant to the Code of Practice. With regard tot the Union’s membership list the Union reiterated its offer to have the extent of its membership within the employment independently verified by the LRC.

Position of the parties:

While a comprehensive written submission was made challenging the Court’s jurisdiction on a number of grounds, in verbal argument Counsel for the Company reduced his objection to a net issue concerning the existence of a trade dispute which the Court could lawfully investigate. Counsel contended that the existence of a valid trade dispute is a condition precedent to the Court’s jurisdiction under the Act. He submitted that a trade dispute could only come into existence when there is a demand by a trade union and a refusal to meet that demand by an employer. In the instant case, it was argued, the Company did not refuse to meet SIPTU before it initiated the process under the Code of Practice and in consequence there was no valid trade dispute in existence at that point. Counsel submitted that this initial invalid reference to the LRC vitiated the entire process which followed thus depriving the Court of jurisdiction to entertain the present application.

For its part the Union contend that it acted as it did in order to expedite the process and that it rightly anticipated the Company’s refusal to meet with it. The Union submitted that the Court’s jurisdiction was unaffected by the matters referred to by the Company and that the dispute was properly before the Court for investigation and recommendation.

Decision of the Court on the preliminary objection:

The Court accepts that the requirements of normal good industrial relations practice dictates that where a trade union seeks to meet with an employer to discuss issues of concern, it should allow a reasonable period in which the employer could respond before referring the issues in dispute to a third party. The Court further accepts that this principle of good practice is equally applicable in matters arising under the Code of Practice and the Act. However the point at issue at this stage in these proceedings is not whether the Union acted precipitately or unreasonably. What is at issue is whether the conduct of the Union had the effect of ousting the Court’s jurisdiction to entertain the present application.

InRyanair v The Labour Court and IMPACT, [2006] 1 ELR , 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: -

The jurisdiction to conduct the preliminary inquiry in which the Labour Court engaged derives from the fact that a trade union has invited the court to investigate a trade dispute. In the first instance, there can be no doubt but that a number, albeit unidentified, of pilots employed by Ryanair are members of the IALPA, the notice party herein. This is not disputed. It is, therefore, clear that upon being requested by a trade union, as was the case here, the Labour Court was entitled to conduct an investigation. 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. It did so satisfy itself and gives its reasons for coming to the conclusion it did. In my view, the respondent was entitled to come to the view which it did and this court, were it to take an alternative view, is not entitled to substitute that view for that of the Labour Court.

It is clear from this passage that the Court’s jurisdiction under Act is derived from the request by a trade union or an excepted body for the Court to investigate a trade dispute. The Court must therefore first be satisfied that the subject matter of the referral made by the trade union or excepted body properly constitutes a trade dispute for the purpose of the Act.

In its decision in the case ofIMPACT v Ryanair[2005] 16 ELR 99 this Court considered the appropriate definition of the term “trade dispute” for the purpose of the Act and concluded as follows:

The appropriate definition of the term “trade dispute” for the purpose of the 2001 Act is that set out 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 the employment, or with the conditions of employment, of any person;
This is a broader definition than that contained in the 1990 Act (or that previously contained in the now repealed Trade Disputes Act 1906) in that it includes a difference between employers and workers as well as a dispute. In the context in which it is used the term “difference” must mean something distinct from a “dispute”. It would appear to have been included in the definition of the 1946 Act so as to allow the Court to investigate a disagreement arising within an employment before positions became so entrenched as to constitute a dispute, in the sense that a strike or industrial action is in place or in contemplation.

Hanna J adopted that definition inRyanair v The Labour Court.

The High Court has made it clear that the Court’s jurisdiction under the Act is founded on the application by a trade union or an excepted body for the investigation of a trade dispute made pursuant to Section 2 of the Act. It follows that the Court must be satisfied that at the time at which its jurisdiction is invoked, and at the time of the investigation, a valid trade dispute, within the statutory definition, exists. The instant case was referred to the Court by SIPTU on 2nd March 2006 and it was at that point that its jurisdiction was invoked. On the documentary evidence before the Court it is abundantly clear that a difference existed on that date between the parties concerning a range of issues including rates of pay and conditions of employment. The Union were claiming that the rates of pay and other conditions of employment of its members should be improved. The Company was not prepared to address those claims nor has it addressed them since. The reason why the Company adopted that stance is not material once it is established that the subject matter of the dispute concerns the pay and conditions of employment of workers and that the dispute was extant at the date of referral and remains unresolved at the date of hearing.

The Court is thus satisfied that at the date on which this matter was referred under Section 2 of the Act a trade dispute existed between the parties. The Court is further satisfied that the dispute remains extant. Furthermore, while the Union did act precipitately in invoking the Code of Practice before the Company responded to its initial letter, this could not have the affect of ousting the Court’s jurisdiction under the Act. having satisfied itself that a trade dispute existed at the material times, the conditions precedent to the courts jurisdiction are set out at Section 2(1) (a),(b),(c), and (d) of the Act. This is an exhaustive list into which the Court cannot import a fifth condition. The Court is further satisfied that the aforementioned conditions specified at Section 2(1) have been met.

Accordingly, there is a valid subsisting trade dispute before the Court which it has jurisdiction to investigate.

Substantive Issues:

Section 5(2) of the Act provides that a recommendation made by the Court shall not provide for arrangements 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 dispute resolution and disciplinary procedures, in the employment concerned.

The Court has taken full account of the submissions made by the parties, including the written submissions made by the Company on the substantive issues. Having considered all of these submissions the Court is satisfied that the rates of pay and conditions of employment of those workers associated with the Union’s claims are out of line with appropriate standards and should be improved as follows:-

Pay.

The Court recommends that basic pay of semi-skilled butchers be increased to €8.50 per 39 hour working week. In addition a guaranteed bonus should be paid of 33.33% of basic pay.

Overtime.

The Court recommends that all overtime worked in excess of 39 hours should be paid at time and one half and that any work done on Sunday should be paid at double time.

Sick Pay.

The Court recommends that the Company introduce a sick-pay scheme providing for up to six weeks sick leave with full pay, less social welfare, per year. All illness covered by the scheme should be covered by a medical certificate. The scheme should not operate in respect of the first three days of illness.

Implementation.

The recommendations contained herein should be implemented within one month of the date hereof.

Signed on behalf of the Labour Court

Kevin Duffy
22nd May, 2006______________________
todChairman

NOTE

Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.