FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DANNINGER LTD (REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr Nash |
1. (I) Selection For Lay Off / Redundancy (ii) Biometric Clocking
BACKGROUND:
2. The dispute between the parties concerns the two issues of the biometric clocking system and the Company's redundancy policy. The biometric clocking system was introduced in January 2007. The Company's position is that it had to bring in such a system due to the serious abuse by a number of hourly paid workers of the manually operated clocking system. The Union argues that it was introduced without any consultation. It does not believe that the Data Protection Commissioner's procedures were followed. With regard to the second issue of redundancies, the Union does not believe that the Company's policy of site specific lay-off is fair. The Company can transfer employees from site to site when it suits yet it can close off this transferability when lay-offs are needed. The Company contend that it has always operated a site by site lay-off policy and that this is the norm in the construction industry where there is no company/union agreement to do otherwise.
The dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 11th July, 2008 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 19th August, 2008.
UNION'S ARGUMENTS:
3. 1 In relation to biometric clocking, the Union believes that the Company did not adhere to Section 2(1)(c)(iii) of the Data Protection Acts, 1988 & 2003, which states that the system introduced should be "relevant and not excessive" in its purpose. The system was introduced on foot of the dismissals of a small number of employees for abusing the previous system. The Union believes it is excessive to impose the biometric clocking system on all employees because of the actions of a very small number.
2 The introduction of biometric clocking was a significant change to the Union's members terms and conditions of employment without prior consultation.
3 The Union's members transfer from site to site during their employment when the Company dictates. It is unacceptable that the Company can then close off transferability when lay-offs are needed.This practice is open to abuse by the Company who can, in theory, move people to sites winding down and thus lay-off people unfairly.
4 The Union believe the Company's redundancy policy should be changed to a Company wide selection policy as is the norm in the Construction Industry and in line with best Industrial Relations Practice.
COMPANY'S ARGUMENTS:
4. 1 In relation to biometric clocking, there is no infringement of the fundamental rights of employees as copies of the fingerprints are not stored nor can they be retrieved from the system.
2 The system has operated successfully for over a year and a half now. To change the system would place unsustainable additional costs on the Company.
3 It is the Company's view that the Union is now seeking a company wide "last in, first out" system in relation to redundancies. This system would put the Company at a disadvantage and unfairly restrict its ability to carry out its business in a competitive manner in an increasingly difficult environment.
4 The policy of site by site lay-offs is the norm in the construction industry. When redundancies are necessary the Company follows the criteria set out in its terms and conditions of employment. This is supported by the Construction Industry Registered Employment Agreement.
RECOMMENDATION:
Biometric Clocking System:
The Court recommends that the clocking system which has been functioning for the past 18 months should continue in the meantime, providing that the system is, and is seen to be, transparent and accords with the criteria as laid down by the Office of the Data Protection Commissioner for the introduction of such a system. Once this has been done to the satisfaction of the parties and with the consent of the Union then the operation of the system should be accepted.
Selection for Layoff:
This matter should be the subject of urgent consultations between the parties, who should agree a fair and transparent system which is practical and which stands up legally. If no agreement is recorded, the assistance of the NJIC for the Construction Industry should be sought and the matter discussed at industry level.
The Court so recommends.
Signed on behalf of the Labour Court
Raymond McGee
3rd September, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.