LCR19188

• 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 –
  • (a) 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 and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve this dispute,

    (b)[ Not relevant]

    (c) [Not relevant]

  (d) Not relevant

• Evidence of Paddy Andrews:
  
  Mr Paddy Andrews gave evidence. He is the General Manager of the banking division of the Company. Mr Andrews commenced employment with the Company in 1999 as the Operations Manager. Previously, Mr Andrews worked with Chubb Alarms for 23 years. When the witness joined the Company in 1999 it employed 12 engineers. It now employs 70 engineers. The Company has never recognised a trade union. The witness told the Court that in 1999 all engineers were involved in both installation and servicing of security systems. As time went on the Company decided to operate separate divisions to deal with servicing and installations. Further divisions were established in 2005 when services to banking and commercial clients were established as separate operational groups. The Court was told that the Company had always communicated directly with its staff. This normally took the form of bi-monthly meetings with employees. The Company set the agenda for these meetings.
  • The witness referred the Court to the minutes of one such meeting, which was held on the 26th November 2001. This, the witness said, was typical of the type of meetings held with employees. The meeting was attended by three representatives of engineers and a range of issues relating to terms and conditions of employment were discussed. Following on from the meeting the management made a response which was then communicated to the employee representative in the form of a minute of the meeting. The witness gave evidence as to a number of issues raised at the meeting and of concessions made by the Company in response to the representations which it received.

• • The witness told the Court that individual engineers or their representatives frequently came to him to raise issues of concern. The Company never refused to discuss such issues either directly with the staff members concerned or with their nominated representatives.

• • The witness referred the Court to a memo which he had issued on the 14th April 2004 setting out the Company’s response to matters raised by representatives of engineers at a meeting held shortly prior to that date. The meeting had been convened to discuss a number of matters of concern to engineers which had been brought to the Company’s attention by their nominated representatives (Mr S.McMorrow, Mr P.Matterson and Mr O.O’Sullivan). The Court was told that the meeting with management lasted approximately one hour and following the meeting the Company formulated a response, which was then communicated in the memo referred to by the witness.
    
    According to the witness a follow-on meeting was held on or about the 21st October 2004. This meeting was attended by management representatives, including the witness, and Mr S.McMorrow and Mr P.Matterson representing engineers. A number of issues where discussed at this meeting and the Company again responded in writing by memo dated 21st October 2004.

• • The witness pointed out that in the memo he had welcomed the appointment of the two representatives of the engineers and had suggested that they should meet on a regular basis, perhaps once every eight weeks, to discuss any issues that might arise. He went on to point out that if he did not convene the meetings the representatives of the engineers should contact him with a view to so doing. According to the witness a number of issues were raised at the meetings and these were responded to by the management. The Court was told that concessions were made in respect of a number of items.
    
    Between 2004 and 2006 there were regular meeting on operational issues but there were no specific industrial relations matters raised during this period.

• • In November 2006 the Company convened general meetings of engineers (one for service engineers and one for installation engineers) to discuss certain operational changes within the structure of the Company. The general meetings also looked at proposals to alter certain conditions of employment including an increase in pay and an increase in overnight allowances along with changes to on-call allowances and travel time. At the end of this meeting the engineers were asked to nominate representatives to discuss any matters arising with management.

• • The Court was told of a follow up meeting with representatives of service engineers held on or about 20th December 2006. The representatives of the engineers raised a number of issues at this meeting. The witness told the Court that he subsequently responded to these issues in a memo addressed to all service engineers and dated 20th December 2006. Another follow up meeting was held on our about 4th January 2007 in relation to these matters and a further memo was issued by the witness on that date, again addressed to all service engineers.

• • The witness told the Court that he had responded to all of the issues raised by the engineers through their representatives. He gave details of the concessions, which had been made.
    
    The Court was told that in or about January 2007 the witness became aware of concerns amongst engineers about conditions of employment within the Company and the effectiveness of their communications system. He also became aware that a number of engineers had joined a trade union. A meeting of all engineers was convened for 16th January 2007 to address these issues. A presentation was made to this meeting, a copy of which was furnished to the Court. In this presentation the Company expressed the view that the benefit package for employees was comprehensive and taken in its entirety represented a very competitive scheme that rewarded employees in the organisation fairly. It was also pointed out that these benefits had been negotiated directly to date.

• • At the close of this presentation engineers were asked to set out their views. The representatives of engineers brought a number of matters to the attention of management. The issues raised were recorded in a document drafted by management. This document was furnished to the Court.

• • A further general meeting of all engineers was held on 2nd February 2007 at which another presentation was made (a copy of which was furnished to the Court). This presentation addressed the issues which had been raised previously by and on behalf of the engineers and had been formulated by management in response to those representations. The engineers were again invited to mandate their representatives to meet with management to discuss these proposals.
    
    The witness told the Court that in the interim they had received an invitation to attend the Labour Relations Commission to discuss issues being raised by TEEU pursuant to the Code of Practice on Voluntary Dispute Resolution, S.I. 76 of 2004. A meeting for that purpose was held on 30th March 2007 at the LRC. According to the witness the Union put forward a claim to the effect that the Company should be paying rates similar to those provided by the National Joint Industrial Council for the Electrical Contracting Industry. The witness told the Court that the Company was genuinely confused as to what was being claimed since there was no direct comparison between the conditions which it provided and those prescribed by the JIC agreement. The TEEU were asked to clarify their position and the meeting was adjourned for that purpose.

• • While this process was in train the Company continued to ensure that all employees, including non-union employees, were kept informed of developments. A further meeting at the LRC had been arranged for 3rd April 2007. However, this meeting could not proceed due to the unavailability of the IBEC representative. The Company nonetheless decided to proceed with a meeting of all engineers on that day.
    
    At that meeting the respondent put forward comprehensive proposals to deal with the various issues which had been raised by engineers at previous meetings. These proposals were modelled on the NJIC rates which had been sought by the Union. However the implementation of the full range of NJIC rates and conditions meant that certain allowances currently payable to engineers would be reduced to bring them into line with those provided in that agreement.

• • The Court was told that following the meeting on 3rd April the management representatives withdrew from the room and asked the engineers to discuss the proposals. The Company received no formal feedback and the witness wrote to all staff on 19th April 2007 inviting a response to its proposals. In this letter the witness asked that the staff would discuss the presentation and nominate representatives from their work groups to attend a meeting on Friday 22nd April at 8:30am in the respondent’s Dublin office. The witness understood that three representatives were to attend that meeting namely, Mr Long, Mr Mc Morrow and Mr Foy. Mr Long did not attend the meeting and the witness understood this was because he had received a text message informing him not to do so. Mr Foy and Mr Mc Morrow did attend but indicated that they would not discuss the proposals as there were ongoing discussions on these matters taking place in the LRC.

• • The witness sent a further letter to all engineers dated 30th April 2007. In this letter the witness asked engineers to put forward representatives who would negotiate directly with the Company.
    
    The witness became aware that engineers in Cork were interested in negotiating directly with the Company and a meeting with that group was held on 2nd May 2007. The Court was told that at that meeting a number of engineers expressed concern that the proposals previously tabled would be accepted without their agreement. The witness said that, in effect, the management representatives were asked by this group to maintain the current structure of payments but to increase the hourly rate.
    
    The Court was told that another meeting was held in the LRC on 4th May 2007. At this meeting the management representatives were given a copy of the Union’s claim. The management were still unclear as to what was being sought by the Union. The management decided that it would have to consider the Union’s claim and the meeting was adjourned. The Company subsequently wrote to all engineers by letter dated 9th May 2007 summarising the position in relation to the LRC process. In that letter it went on to indicate that it would consider the Union’s revised claim in conjunction with the non-Union employees. It indicated it would come back to all staff in due course.

• • The witness told the Court the next meeting was held at the LRC on the 28th May 2007.The Union representative Mr Hall, was not in attendance due to illness. However two representatives of the engineers were in attendance and the Company put forward a revised proposal to increase the headline rate but leave all other conditions in place. The witness understood that the representatives undertook to take these proposals away and respond at a later date.
    
    A further meeting of all engineers was held on 29th May 2007. The Company put forward a further proposal at this meeting. Following the presentation the management representatives again left the room to allow those present to respond. The witness said that there was a non-committal response from employees.

• • A further meeting did take place on 23rd August 2007. At this meeting the Advisory Officer reiterated that the Union were looking for NJIC rates. The witness told the Court that the management representatives remained unclear as to what the Union was seeking. According to the witness the Advisory Officer then indicated to the management that as no further progress was made the matter to should be referred to the Labour Court. The witness said that he understood if the matter was referred to the Labour Court that the Court would first deal with jurisdictional issues.
    
    A meeting of all engineers was held 1st November 2007. This meeting was given an up-to-date report on the LRC process and on the Company’s approach to dealing with the issues concerning pay and conditions. The meeting was asked to put forward representatives to deal with the Company. According to the witness a meeting was subsequently held in Dublin on 14th November 2007 with four representatives of the engineers in attendance. The Company put forward revised proposals at this meeting. These proposals involved a 9% increase in the hourly rate in the period January 2007 to June 2007. Under this proposal the lunch allowance and travelling time would be set at €6.50 per day. This represented a reduction in the allowance paid to some grades. The representatives agreed to take the proposal away for consideration by the groups that they represented. The witness said that this proposal was fairly well received. However the representative of the Cork engineers felt that the increase in pay should be higher.

• • According to the witness a further proposal was formulated by the Company having considered the representation made at the meeting of 14th November and subsequent feedback. This was put to representatives of engineers on 19th November 2007. Under this proposal a further increase of 1% was to be added to the basic rate for the various grades. The representatives were asked to take the proposals back to their respective groups. Meetings of both the Cork and Dublin engineers were arranged for 22nd November 2007 for that purpose.
    
    The witness told the Court that the report which he received back from the meeting held in Cork indicated that the proposals had been discussed and certain counter proposals had been formulated. A request had also been made for information on the effect of the proposals on take-home pay. A spread-sheet providing this information was produced by the Company and furnished to the representative of this group. The witness was told by the representative of the Dublin engineers that the meeting of that group had been poorly attended and the proposals had not been discussed.

• • No further progress was made in the matter. The witness told the Court that at all times representatives were put forward freely by the engineers themselves and management had no involvement in their selection . The witness also told the Court that the management of the Company was seeking to reach a common agreement with all groups within the employment. Difficulties had arisen because of the different approaches taken by those engineers in Dublin and those in Cork. They were still in the process of trying to reach an accommodation when the matter came before the Court.
    
    In cross examination by Mr Hall for TEEU the witness confirmed that he had worked for Chubb Alarms for 23 years and had been a shop Stewart while employed by that Company. The witness told Mr Hall that in November 2007 he became aware that some employees had joined a Union. He confirmed that he had never given proposals directly to the Union nor had he ever sought clarification directly from the Unions regarding any proposals which it had put forward. The witness said that he had sought clarification of the Union’s position through the Advisory Office.

• • It was put to the witness that the practice of the Company was to call in workers and give them the Company’s position and they were then asked to come back and agree to them. The witness said that they were at all times seeking to reach agreement with the workforce through their representatives, as was evident by the number of times on which the management had changed its position in negotiation with the representatives.

• • In response to questions from the Court, the witness said that typically meetings lasted approximately one hour and that meeting were held in either Dublin or Cork. The witness confirmed that management set the agenda for all meetings and there were no facilities for workers to meet during working hours. The witness also accepted that there was a dispute between a group of workers in Dublin and the Company concerning rates of pay. The witness further confirmed that there was no established forum at which negotiations were conducted and that meetings were arranged on an ad-hoc basis as issues arose. The witness accepted that general meetings with staff were for information purposes and he did not consider them to involve collective bargaining.

• • In respect to the meetings held at the advisory service of the LRC, the witness accepted that he had never met with the Union face to fact but had communicated at all times through the Advisory Officer.
    
    
    
    
    
    Evidence of Liam Gallagher:
    
    Mr Liam Gallagher gave evidence on behalf of the Company. Mr Gallagher told the Court that he was a service engineer employed by the Company in the Munster region. He said those working in that region are colloquially referred to as “The Cork Engineers”. He had been employed for two years in the Company. He told the Court that he was present at a meeting of engineers in April 2007 in the Cork office. A presentation was made at this meeting setting out the Company’s position on pay and conditions of employment. It was suggested to the meeting that the engineers should discuss the proposals and nominate representatives to report back to management. The management representatives left the meeting and the engineers present discussed the matter.

• • The witness said that various views were put forward at the meeting. Both himself and Mr James Long were chosen as representatives of the group. At that time engineers were trying to get negotiations up and running with the Company in respect of various matters. The witness confirmed that a further proposal was put forward on 29th May 2007 in response to the views which had been expressed at the meeting held to consider the April proposal.
    
    The witness said that he had no further involvement in these matter until November 2007 when a meeting was convened by management. The witness said a meeting was scheduled for the 1st November 2006 but that he did not attend this meeting. The witness did attend a meeting on 14th November at which other representatives were present on behalf of the Dublin engineers, but that he did not know their names. A document was presented to this meeting setting out proposals on pay. In reply to Mr Deegan of IBEC, for the Company, the witness said that he regarded these proposals as being neither a step forward nor backward. In further reply to Mr Deegan the witness said that he regarded himself and having been involved in discussion with the management rather than in negotiation. He said that his objective was to get better rates of pay for the group he represented. He passed on the views of that group but he did not know if the management took those views on board.

• • The witness said that a further meeting was held on 19th November 2007 at which no Dublin representatives were present. Management produced a document setting out further proposals prior to this meeting. These proposals provided for an additional 1% increase in pay over the proposal of 14th November 2007. This document was taken away for consideration by the engineers in Cork. The majority of engineers in Cork rejected these proposals. They wanted more than the Company was offering.
    
    According to this witness nothing further happened after November 2007. He had no contact with the Union. Asked about the format of the meetings held to discuss the company’s proposals the witness said that a copy of the documents were put to the meeting, there was discussion and a consensus emerged that the proposals were inadequate. There was no formal vote taken.

• • In response to questions from the Court the witness said that he felt the purpose of the exercise was to get the Cork engineers on board and then use this against the group of engineers based in Dublin. The witness also told the Court he did not consider himself a negotiator and was merely carrying messages back and forth to the management of the Company.
    
    Evidence of James Long:
    
    Mr James Long gave evidence to the Court on behalf of the Company. He was employed by the Company as an engineer since 2002. He told the Court that he had attended a meeting of engineers convened by the Company on 3rd April 2007. Following this meeting he was asked by the Cork group to take on the role of representative. He agreed to take on that role. The witness said that Mr Owen O’Sullivan had been the representative of the Cork Engineers previously.
    
    The witness told the Court that a meeting had been arranged in Dublin for 27th April 2007 to discuss the contents of a memo issued by the Company dated 19th April. He said on arrival in Dublin he got a text asking him not to attend the meeting. He rang his supervisor who told him that it was up to him to decide whether or not to attend. He then rang Mr McMorrow, a representative of the Dublin engineers, who encouraged him to attend. In the event he did not attend the meeting. He said he attended meetings on the 2nd May 2006 and on the 29th May 2006 in his capacity as a representative. The witness told the Court that he also attended a meeting on 1st November 2007 at which the Company made a presentation concerning terms and conditions of employment.
    
    The witness confirmed that he had been present at a meeting at which Mr Gallagher was selected as a representative of the Cork group. He had suggested that another engineer should be appointed who could accompany him (the witness) to meetings. A number of those present suggested that Mr Gallagher take on the role. Mr Gallagher agreed.
    
    The witness told that Court that he did not consider himself a negotiator. His function was to get information and report back to the engineers. He said when general meetings were held to discuss the Company’s proposals they did not find favour with the engineers.
    
    Evidence of Stephen Mc Morrow:
    
    Mr Stephen Mc Morrow gave evidence to the Court on behalf of the Union. He is employed by the Company since November 2003. He was elected Shop Steward in February 2007. The witness said there were 30 employees of the Company who were members of the Union. This witness said that he was a representative of the Dublin engineers since 2004. In that capacity he had attended a number of meeting with management to discuss term and conditions of employment.
    
    This witness told the Court he did not recall being at a meeting in the LRC on the 28th May 2007 His recollection was that the meeting was cancelled due to the unavailability of Mr Hall.
    
    The witness referred to Mr Long’s evidence concerning the meeting held in April, which Mr Long had been asked not to attend by way of a text message. This witness said that he had encouraged Mr Long to attend the meeting and knew nothing of any text messages being sent asking Mr Long or others not to attend meetings.
    
    The witness confirmed he had attended a meeting with the Company on 14th April 2004 at which various issues were discussed relating to terms and conditions of employment. He also attended a follow up meeting held on 21st April 2004. The witness agreed that in a memo emanating from this meeting the Company suggested that regular meeting should take place between its representatives and those of the engineers.
    
    The witness went on to say that on several occasions he had raised issues regarding pay with management but that nothing had been done. The witness told the Court that following a general meeting convened on 16th November 2006 there was further discussions amongst the engineers in Dublin concerning matters dealt with at that meeting. He said together with Mr Richard Foy he had met with management and discussed issues raised at the meeting. In response to the representations made to the Company a memo was issued to all service engineers dated 20th December 2006.
    
    The witness told the Court that at that point they felt that they were going nowhere with the discussions with the Company and it was decided to involve the Union. The witness told the Court he attended a meeting at the LRC on 13th March 2007 but there were no negotiations at this meeting. He also referred to the meeting held on 27th March 2007.
    
    The witness referred to a meeting convened by the Company on 27th April 2007. At that meeting he declined to discuss the matters, which were then being dealt with at the LRC process. The Company put proposals forward and they were brought back to the engineers on the assurance of the Company that doing so would not affect the LRC process. These proposals were rejected. The witness said in reply to questions from the Court that he did not see his role as a negotiator at any stage. He asked questions and reported back.
    
    
    Evidence of Richard Foy:
    Richard Foy gave evidence to the Court. He has been employed for nine years with the Company. He was elected Shop Stewart in 2007. He said that himself and Mr Mc Morrow had arrived at the LRC for a meeting on the 2nd May but when they arrived they discovered Mr Hall was unavailable and so the meeting was cancelled.
    

The Court must decide, on the evidence, if the conditions precedent to its jurisdiction have been met. These conditions are: -

1. That a trade dispute exists between the company and a grade, group or category of employees.

2. That it is not the practice of the Company to engage in collective bargaining negotiations in respect of the grade, group or category who are party to the trade dispute.

3. That the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute.

In summary the argument advanced by the Company in contending that none of these requirements are fulfilled are: -

�There can be no trade dispute because there was an absence of clarity in the Union’s demands. The Company also contends that since discussions were on-going in relation to certain conditions of employment a trade dispute could not have come into being. It is the Company’s contention that a trade dispute could only crystallise when those discussions terminated. They say that the only reason final agreement had not been reached is that the trade union members thwarted the process by withdrawing from the negotiations.

�The Company further contends that the internal negotiating arrangements constitute an internal dispute resolution procedure. It was submitted on the Company’s behalf that this procedure had not been exhausted as it had put forward a position on 19th November 2007 to which the Dublin Engineers did not respond.

�The company say that it has an established practice of engaging in negotiations with representatives of employees. Those representatives, it is submitted, are independent in the sense that they are freely chosen by their peers. They say that the negotiations are collective in that the outcome affects all employees and that it involves bargaining in that the Company makes concessions in response to representations made by employee representatives.

Findings of Fact

Having reviewed the evidence adduced the Court has concluded as follows: -

The Company grew from being a small enterprise in 1999 to a significant employer over a relatively short period. Undoubtedly in the initial stages of its development communication between the Company’s management and what was then a relatively small workforce was direct and informal. As the Company expanded it sought to put in place more formal systems of communication. Thus by 2001 the Company had initiated an arrangement whereby general meetings of engineers were convened to convey information on changes in the Company’s structure and work organisation. It appears from the evidence that in parallel with this arrangement meetings were also held between representatives of employee and management to follow through on issues which arose at these meetings, or to deal with other matters of concern to the engineers.

There was no structure within which this dialogue took place. It appears that meeting were convened by management when they considered it necessary and the agenda was set by management. There was no particular frequency set for meetings although in 2004 Mr Andrews did suggest that the staff representatives should meet with him and his management colleagues at eight weekly intervals. It appears, however, that nothing became of this suggestion. While the employees did appointed representatives from time to time there was no formal system of nomination or election. Nor was any term of office prescribed for those appointed. There were two groups; the Dublin based engineers and those based in Munster, referred to as the Cork engineers. Each group had its own representatives.

The evidence before the Court indicates that in or about 2004 issues began to emerge concerning terms and conditions of employment. The Company is part of an industrial sector which appears to have a significant level of trade union organisation. Its competitors appear to follow the rates of pay prescribed by the Registered Employment Agreement for the Electrical Contracting Industry (known as the NJIC agreement) although the sector is not within the scope of that agreement. The Company’s rates of pay were lower that those of the NJIC agreement. However the Company claims that its overall remunerative package was at least, if not more, favourable than that provided by the NJIC agreement.

From the many documents put before the Court it appears that there was some demand from employees for the NJIC rates as far back as 2004. This was the subject of discussion between the management and the representatives of engineers and management put forward a response in a memo to employee representatives on 21st October 2004. The matter appears not to have been pursued further at that stage.

In or about November 2006 issues re-emerged concerning pay and conditions of employment. While staff made no formal demands, management became aware of discontent amongst its engineers. Management convened general meetings of engineers at which offers and proposals were made. At these meetings engineers were asked to put forward representatives who could discuss the proposals further with management.

The engineers did put forward representatives to discuss these issues with management. However it is clear from the evidence given by the Company’s witnesses who participated in the process that they regarded it as amounting to little more that carrying messages between the engineers and management.
There appears not to have been a common approach between the Dublin engineers and those in Munster. The Cork engineers appeared willing to continue to deal with the Company in the hope of obtaining agreement. The Dublin engineers formed the view that the process was futile and they decided to join the Union.

At these meetings Mr Andrews and Ms McCullagh, the Human Resources Manager, represented the Company. It is clear to the Court that the representatives of the engineers felt that they lacked the skills and competence to carry on any meaningful form of negotiation. They were not trained and were not provided with any facilities which might have assisted them in fulfilling an effective representative role when faced with skilled managers on the other side. This undoubtedly contributed to the negative attitude which they formed regarding the utility of the process. However, the management were willing and anxious to engage in talks with these representatives and they were equally anxious to reach agreement.

In or about January 2007 the Company became aware that a number of its engineers had joined the Union. Management were also generally aware of the identity of those who were seeking trade union representation. The Company then intensified its efforts to address the concerns of staff by direct discussion or though the staff representatives. General meetings were convened and proposals on pay and conditions were put forward. Staff were again invited to discuss these proposals through their representatives.

The Union formally wrote to the Company on 15th January 2007 seeking, in effect, recognition for collective bargaining purposes. The Company rejected this approach. The Union then invoked the procedures prescribed by the statutory Code of Practice on voluntary dispute resolution. The Labour Relation Commission invited the Company to participate in the process envisaged by the Code of Practice and the Company agreed to participate.

A number of meetings were held pursuant to the Code of Practice. The parties did not have any face-to-face engagement but communicated through the Advisory Officer of the LRC. The Union put forward its list of demands and these were conveyed to the Company. In general the Union were seeking to bring the rates of pay and other conditions of employment within the Company into line with those observed by other employments in the sector which did negotiate with the Union. While Mr Andrews told the Court that he was not clear on what the Union wanted, the Court is satisfied, on the evidence, that at all times the Company were aware of the general approach and aspiration of the Union. The Court is also satisfied that the Company was aware that the Union were acting for and on behalf of a group of Dublin based engineers in putting forward these demands. If the Company needed further or better particulars of the claims they could have sought whatever detail they required either from the Union or directly from the employees representatives of the Dublin engineers who, at that stage, were the appointed shop-stewards of the Union.

The process of engagement at the LRC extended from March 2007 until August 2007. During this time there were four meetings convened (although there is a dispute as to whether one of them proceeded). However, the Court is satisfied on the evidence that the Company made no meaningful attempt to resolve the issues in contention with the Union through this process. Indeed it appears abundantly clear from all of the evidence that the Company had firmly set its face against concluding any business with the Union and that it was only prepared to resolve the issues in contention directly with its staff.

Concurrent with the process in the LRC the Company continued to make strenuous efforts to resolve the issues in contention directly with staff and without involvement by the Union. General meeting were convened at which proposals were put forward and staff were invited to have further discussion through their representatives. The Dublin staff refused to engage in this exercise. They took the view that the situation had moved on and was now in the hands of their Union and the issues in contention were being addressed through the LRC process. The Cork group were prepared to continue their engagement with the Company in the hope of resolving matters. However, as their representatives who were called to give evidence by the Company told the Court, they did not believe that they were capable of negotiating and were merely conveying the views of their principals to management. They did, however, accept that they were seeking to reach agreement on behalf of the Cork group. Notwithstanding this engagement agreement was not reached with either group and the matters in contention remain unresolved at the time of this hearing

The law.

Existence of a trade dispute.

The Court must be satisfied that a trade dispute existed at the time the case was referred to the Court, namely on 8th November 2007 and that the dispute subsists at the time of the proposed investigation by the Court. That is a mixed question of fact and law.

The appropriate definition of the term “trade dispute” for the purpose of the 2001 Act is that contained 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;

The definition requires a consideration of whether there are the correct parties to the dispute or difference and if the issues in contention form the correct subject matter of a trade dispute. The Union contends, and the Court accepts on the evidence, that the parties to the putative dispute are the Dublin based engineers and the Company. They are workers and employers and are correct parties within the statutory definition. The subject matter of the dispute must be connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person. Again the issues in contention, as set out in the Union’s detailed statement of claim of March 2007, are clearly connected with conditions of employment of engineers and form the correct subject matter of a trade dispute within the statutory meaning. In these circumstances the Court believes that a trade dispute had crystallised between the parties.

Exhaustion of procedures

The Company contends that there is a third requirement which is not found in the definition of a trade dispute just quoted. In reliance on the decision of the Supreme Court inRyanair v The Labour Court and others[2007] 18 ELR 57 Mr Deegan, for the Company, submitted that internal dispute resolution procedures must also have been exhausted before a trade dispute can come into being. In support of this submission the Court was referred to the following passage from the Judgment of Geoghegan J. which appears at page 73 of the report: -

• • The Labour Court in considering whether there was a “trade dispute” should have investigated whether there was internal machinery for resolving the perceived problem and whether that machinery had been exhausted.
    

Collective bargaining negotiation

The Union submitted that the process of discussion engaged in by the Company in the instant case does not amount to collective bargaining properly so-called. Mr Hall, for the Union, referred the Court to several dictionary and other definitions of the expression. One of the definitions suggested appears to be in line with that produced by the ILO in its recent Declaration on Fundamental Principles and Rights at Work (1998). Ireland has adopted that instrument. It provides that collective bargaining involves negotiations between employers and workers organisations. This is in line with the dictionary definitions cited which refers to employers as “organised” workers or “workers organisations”.

Mr Deegan, for the Company, urged the Court to consider the expression “collective bargaining” disjunctively. That is to say the process should be regarded as collective in the sense that it comprehends a group or body of workers and that it involves bargaining in the sense that the employer is prepared to reconsider its position in light of arguments made by the other side.

In its decision inRyanair,and in earlier decisions under the Act, this Court took the view that the expression “collective bargaining negotiations” should be interpreted in line with its generally understood technical meaning. The Supreme Court regarded that approach as incorrect. It held that the expression was to be given its ordinary meaning and not some special meaning peculiar to trade union negotiations.

Mr Justice Geoghegan said, at page 75 of the report: -

• • If there is a machinery in Ryanair whereby the pilots may have their own independent representatives who sit around the table with representatives of Ryanair with a view to reaching agreement if possible, that would seem to be“collective bargaining”within an ordinary dictionary meaning. It would seem strange if definitions peculiar to trade union negotiations were to be imposed on non-unionised companies.

The practice of the Company

Having considered if the Company engaged in collective bargaining negotiations, as that term must be understood, the Court is required by s2(1)(a) of the Act to then consider if it is the practice of the Company to do so. The Supreme Court inRyanairconsidered what is meant by the word “practice”.

In that context the Judge said, at page 66 of the report: -

• • The key question would seem to me, was there in place a machinery which would have obliged the management of Ryanair to sit around the table with representatives of the Dublin pilots and discuss matters of pay and conditions.

• • In my view, what “practice” means therefore in this context is that the machinery was in place and not ad hoc. It did not mean that the “practice” ceased to exist if the employees unilaterally abandoned it.

Conclusion

The Court accepts the Union’s submission that on the facts of this case there was an inherent and manifest inequality of negotiating capacity between the employee and management representatives. A professional H.R. specialist and senior managers represented the Company. Electricians who had no training or skills in negotiation or bargaining represented the employees. It is clear on the evidence that because of this the employee representatives came to see their role as involving little more than carrying messages back and forth and considered the process to be a waste of time and going nowhere.

It is nonetheless clear on the evidence that there was a practice whereby representatives of the employees, including representatives of the Dublin engineers, sat around a table with representatives of the Company with a view to reaching agreement if possible. That is collective bargaining negotiations for the purpose of the Act.

If the Court were considering the factual matrix of this case in an industrial relations context it might take a different view. However it must apply the law as it finds it and following the decision inRyanairthey can be no doubt as to the correct legal approach to the questions arising in this case.

Accordingly, the Court must hold that it is the practice of the Company to engage in collective bargaining negotiations in respect of the grade group or category who are party to the dispute. In consequence the Court has no jurisdiction to investigate the dispute.

Determination.

The Court lacks jurisdiction to investigate the substantive dispute between the parties.













Signed on behalf of the Labour Court



Kevin Duffy
10th April, 2008______________________
MG.Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.