FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 32(2), INDUSTRIAL RELATIONS ACT, 1946 PARTIES : P ELLIOTT & CO. LIMITED (REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION) - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Complaint that Trade Union is funding strike for conditions other than fixed by Registered Employment Agreement (REA).
BACKGROUND:
2. On 18th July, 2006, the Construction Industry Federation (CIF) made a complaint to the Court pursuant to Section 32(2) of the Industrial Relations Act, 1946, alleging that the Building and Allied Trades Union (the Union) were supporting a strike in circumstances which contravened the said Section of the Act.
DECISION:
The impugned strike is in furtherance of a dispute between the Union and P Elliot & Co. Limited. The dispute was investigated by the Court and was the subject of Recommendation LCR18588, in which the Court did not recommend concession of the Union’s claims. The Recommendation was rejected by the Union following on from which it initiated strike action in pursuance of its demands. At the time of hearing the strike was continuing.
The parties to the dispute are party to the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment). That Agreement was registered in the Register of Employment Agreements on 15th March, 1967, and varied for the twenty-third time by the Court under Section 28 of the Act on 27th May, 2005. The CIF contend that the strike is unlawful by virtue of Section 32(2) of the Act in that it has as its purpose the enforcement of a demand for pay and conditions of employment other than those provided for by the Agreement. They submitted that in these circumstances the Court should make an order pursuant to s 32(2) (b)(i) directing the Union to refrain from assisting out of its funds the maintenance of the strike. The Union contends that the strike is not in breach of the agreement or the Act since the dispute resolution procedures contained in the Agreement has been resorted to and exhausted before the strike action was taken.
Approach of the Court.
In this case the Court is dealing solely with the complaint made by the Construction Industry Federation and its only function is to determine if that complaint is or is not well founded. The Court must decide that question by reference to the language used in the statute and in the relevant provision of the Agreement. In so doing the Court must interpret both instruments as it finds them and it cannot import words or provisions which they do not contain. Nor is the Court concerned in this case with the merits of the dispute. The Court’s views in that regard have already been set out in Recommendation LCR18588.
Nonetheless, it is appropriate to state that the Registered Employment Agreement for the Construction Industry has brought very significant benefits to both workers and employers in the industry by providing reasonable standards of employment conditions and an effective mechanism for the enforcement of those conditions. It is clearly in the interests of all parties to support both the spirit and the letter of the Agreement and to desist from any action which would undermine its continued effectiveness.
Statutory Provisions.
The outcome of this complaint turns on the correct construction of s 32(2) of the Act and the relevant provisions of the Agreement. Section 32(2) of the Act provides as follows: -
- (2) If an employer or a trade union representative of employers affected by a registered employment agreement complains to the Court that a trade union representative of workers affected by the agreement is promoting or assisting out of its funds in the maintenance of a strike which to the knowledge of the general committee of management of the trade union of workers is in contravention of the agreementandwhich has for its object the enforcement of a demand on an employer to grant to a worker remuneration or conditions other than those fixed by the agreement, the following provisions shall have effect— [Emphasis added]
- ( a ) the Court shall consider the complaint and shall hear all persons appearing to the Court to be interested and desiring to be heard;
( b ) if, after such consideration, the Court is satisfied that the complaint is well-founded—
- ( a ) the Court shall consider the complaint and shall hear all persons appearing to the Court to be interested and desiring to be heard;
It is clear on a plain reading of subsection (2), (having regard to the word emphasised), that the provision is conjunctive and is applicable where a strike is both in contravention of the agreement and has as its object the enforcement of a demand for conditions other than those provided for by the Agreement. Thus, while the object or purpose of the strike may be to enforce conditions in excess of those contained in the Agreement, unless it is in contravention of the agreement is cannot be brought within the ambit of the subsection.
The relevant provision of the Agreement is contained at Clause 11 and provides as follows: -
- Procedure for Settling Grievances and Disputes
If a trade dispute occurs between workers to whom this Agreement relates and their employer, no strike, lock-out or other form of industrial action shall take place until the following procedures have been complied with and the Labour Court has issued a recommendation.
The effect of this clause is to restrain a trade union (or an employer) from engaging in a strike (or lock-out) or industrial action in furtherance of a trade dispute until the subject matter of the dispute has been investigated by the Court and a recommendation issued. It follows that once the Court has issued a recommendation that restraint no longer applies. Thus, based on the language in which Clause 11 is expressed, the Court must hold that a strike following the rejection of a Labour Court recommendation is not in contravention of the Agreement.
The Court notes the CIF’s contention that the dispute should have been considered by the NJIC for the industry before it was referred to the Court. It is, however, clear from the text of the Agreement that a Labour Court investigation is the final stage in the procedure. The dispute was referred jointly to the Court and both parties participated fully in the Court investigation without demur. It follows that when the Court issued its recommendation the procedure prescribed by the Agreement became exhausted.
In these circumstances the Court cannot hold that the Union is acting in breach of the Agreement in supporting the impugned strike. As the strike is not in contravention of the Agreement the provisions of s 32(2) are inapplicable. Accordingly, the Court must hold that the complaint before it is not well founded.
Signed on behalf of the Labour Court
Kevin Duffy
9th October, 2006______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.