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 : CASTLE T FURNITURE LTD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. 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 Union requested a meeting with the employer following a meeting with its members in December 2005. The Union wished to discuss the non payment of "Towards 2016" to staff and a number of other issues. As the employer did not respond to the Union's correspondence, the matter was referred to the Advisory Service of the Labour Relations Commission. The parties held a number of meetings with the Advisory Service but at no time did they meet directly. Following these meetings a proposal was issued by the Advisory Service in June 2006 which was accepted by the Union but not implemented by the employer. Further discussions were held with the Advisory Service in July 2006. The Employer indicated that trading circumstances prevented them from paying "Towards 2016". In September 2006 the employer supplied figures to the Union outlining their trading difficulties. The Union had the figures assessed and they concluded that the payment of "Towards 2016" was possible. The Union requested that the matter be referred to the Labour Court. The Employer indicated to the Court by letter that it would unable to attend the hearing.
The dispute was referred o the Labour Court on the 26th April, 2007 in accordance with Section 2(1) Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004. A Labour Court hearing was held on the 6th September, 2007.
UNION'S ARGUMENTS:
3. 1 The Union claim is for the application of "Towards 2016". The Company is refusing to pay basic cost of living increases to workers while the wages of Directors continue to increase. The workers in this employment have not received a pay increase since July 2005. The current rate of pay is less than comparable employers.
2 The Company have experienced financial difficulties in the past but Directors have been withdrawing money and under budgeting which exacerbates the appearance of the financial situation. This renders the argument that they cannot afford to pay invalid.
3 The Company has secured additional business this year and has hired extra staff to deal with this.
RECOMMENDATION:
This dispute came before the Court pursuant to Section 2 of the Industrial Relations (Amendment) Act 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004 (the Acts). The Court is satisfied that the requirements specified by Section 2(1) of the Act have been met and it has jurisdiction to investigate the dispute.
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 the dispute resolution and disciplinary procedures, in the employment concerned.
The Union informed the Court that it represents 9 employees out of a total of 18 employed in the Company. Ms. Karen O'Loughlin, Sectoral Organiser, SIPTU gave evidence to the Court that she wrote to the Company on 15th August 2007 seeking release of Mr. Brian McKenna without loss of earnings, to attend the Court hearing on 6th September 2007 in order to give evidence. The Company failed to respond to the Union's request and failed to respond to release Mr. McKenna. On behalf of the Union's members Ms. O'Loughlin sought application of "Towards 2016" to the rates of pay. She told the Court that the rates had not been updated since July 2005 and produced evidence to show that they were out of line with comparable employment. Ms. O'Loughlin stated in her submission to the Court that 2007 had been a good year for the Company; it has secured additional business and taken on new staff.
The Court received by fax a copy of a letter dated 5th September 2007 from Mr. John McInerney, Director, Castle T Furniture Limited (C.T.F. Ltd.) indicating that due to work commitments, he would be unable to attend the hearing. On 31st August 2007, the Court received a letter dated 30th August 2007 form HDS Partnership giving details of the Company's financial position. Mr. McInerney's letter asked the Court to incorporate these details into its proceedings.
As to the probative value of the letter from HDS Partnerships, its probative value is considerably diminished as it was not personally presented to the Court in evidence and the Court was not in a position to hear direct evidence as to its contents from any witness representing the Company. In coming to this conclusion, the Court relies upon the decision inRyanair Limited v Labour Court and ImpactSupreme Court decision no. 377/05, in which Geoghegan J. stated
- "Direct evidence on any issue is generally to be preferred to a legal submission or an opinion or references to documents unsupported by direct evidence"
Application of the Terms of Towards 2016
"Towards 2016" includes a provision whereby a Company may claim inability to pay the terms of the agreement. In such circumstances an assessor may be appointed for the purpose of evaluating the economic, commercial and employment circumstances of the Company and the Court may issue a binding decision pursuant to Clause 1.9(ii) of Towards 2016. However, the Company has not availed of these provisions in this case.
In all circumstances, the Court recommends that the terms of "Towards 2016" should be applied to the workers rates of pay, and the following increases should be paid with retrospect effect from the following dates:
3% from 1st January 2006
2% from 1st July 2006
2.5% from 1st March 2007
2.5% from 1st September 2007
Implementation.
The terms of this recommendation should be implemented within one month from the date on which it is issued.
Signed on behalf of the Labour Court
Caroline Jenkinson
1st October 2007______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.