LCR19721

Introduction

This dispute was referred to the Court pursuant to Section 2 (1) of the Industrial Relations (Amendment) Act 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act 2004. It is noted that the Union sought to invoke the voluntary dispute resolution procedures provided for in the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76/2004). However by an e-mail communication to the Labour Relations Commission dated 16th June 2009, the employer declined the invitation of the Commission to participate in the procedures envisaged by the Code of Practice.

The parties

The applicant Union represents Operative Butchers employed principally in the City and County of Cork. Five of its members are associated with the claim. The employer is a family owned retail butchers which trades from six locations throughout Ireland. Two of these outlets are located in Cork.

Jurisdiction

In its initial submissions to the Court the employer took issue with the Court’s jurisdiction to investigate the dispute. Specifically, it was contended that internal dispute resolution procedures normally used by the parties for the resolution of disputes had not failed to resolve the dispute (as is required by s.2(1) (a) of the Act). It was submitted that the internal procedures requires employees to first raise issues concerning their pay with the employer. In reliance on the decision of the Supreme Court inRyanair v The Labour Court[2007] 4. IR 199, it was correctly submitted by the employer that compliance with this provision is a condition precedent to the Court’s jurisdiction. It was accepted by the employer that one of the workers associated with the Union’s claims had made internal representations in relation to his rate of pay and had been advised that the employer would be prepared to review its position in that regard at a later stage.

The Court has considered the arguments advanced on this point. The Court is by no means satisfied that a facility for an individual to raise matters of pay informally and directly with his or her employer can constitute an internal dispute resolution procedure within the statutory meaning of that term. However, even if the Court is incorrect on that point it is satisfied that the putative procedure relied upon by the employer was utilised in this case and failed to resolve the dispute.

Accordingly the Court is satisfied that the conditions specified at Section 2(1)(a) to 2(1)(d) of the Act are fulfilled in this case and that the dispute is properly before the Court for investigation and recommendation.

The substantive case

The Union’s claim is for the payment of an hourly rate of €15.00 to butchers employed by the employer in its Cork outlet. The Union contends that the rate claimed is provided for in a collective agreement made between it and an association of employers, known as the Cork Master Butchers Association. It is the Union’s case that this agreement is generally applicable throughout the trade in the Cork region. It contends that although the employer is not a member of the Association it should pay the trade rate to the butchers that it employs. The employer currently pays an hourly rate of €12.

Evidence

Evidence was given by Mr Noel Murphy who is General Secretary of the applicant Union. The trust of Mr Murphy’s evidence was to the effect that his Union and the Cork Master Butchers Association have negotiated rates of pay and condition of employment for the trade in Cork for decades. He said that the rates and conditions are set out in a collective agreement which is then distributed to all butchering establishments in the greater Cork area. Mr Murphy told the Court that his Union represented the majority of operative butchers in the Cork area. He said that from his own knowledge and experience he could testify that practically all butchers employed in Cork obtain the agreed rates.

Mr Pat Brady gave evidence on behalf of the employer. Mr Brady is Chief Executive of the Associated Craft Butchers of Ireland, which is a trade association representing Butchers in Ireland. Mr Brady told the Court that his Association represents 550 businesses throughout Ireland. It has been in existence for 10 years.

Mr Brady’s was unaware of an association known as the Cork Master Butchers Association. He said that his Association had a significant membership in Court and he had never heard of the collective agreement relied upon by the Union. Mr Brady told the Court that there are currently no guidelines on pay rates in the trade and it was a matter for each establishment to determine its own pay policy. From his own knowledge of rates paid within the sector generally, Mr Brady gave it as his opinion that the rates of €12 per hour were not out of line with normal standards.

At the resumed hearing on 27th January 2010 the Court heard evidence from Mr Liam Bresnan. Mr Bresnan told the Court that he is Secretary of the Cork Master Butchers Association and has held that Office since 1978. It was Mr Bresnan’s evidence that the organisation had been in existence for over 100 years. It is a registered Trade Union of Employers. Its current membership comprises some 15 establishments in Cork City and County. The witness is the proprietor of a Butcher’s business in Cork and employs five Butchers. He has always paid the rates agreed with the Union.

The Court was told that the organisation does not charge a membership fee and that it does not maintain a formal register of members. It holds an Annual General Meeting which is rarely attended by more that two members.
The witness testified that the Association negotiates pay and conditions of employment with the Cork Operative Butchers Society and the outcome of the negotiations are incorporated in a collective agreement. In recent years the agreement was amended by incorporating the pay increases provided for by successive national pay agreements. Usually the Union would write to him in his capacity as Secretary of the Association advising of the increases provided in the latest national agreement. He would normally consult with members of the Association by telephone and obtain approval to implement the increases notified. The revised rates would then be printed at the expense of the Association and distributed to butchers’ establishments at the expense of the Union.

Mr Bresnan told the Court that he understood that the rates were notified to 48 establishments in Cork City and County. He assumed that these establishments paid these rates because there were no disputes concerning their application. He said that the rates were paid by a named supermarket multiple and were paid by the former owners of the establishment to which the current dispute relates.

A pension scheme is jointly operated by the Association and the Union. As of 1st October 2009 there were 15 employers in membership of this pension scheme. The witness said that the effective membership of the Association comprised those employers who subscribed to the pension scheme.

It was put to the witness in cross-examination that there are 149 butchers establishments in the greater Cork area. Mr Bresnan told the Court that he would not be surprised at that number. He suggested, however, that not all of those establishments had employees. The witness was also referred to the results of a survey conducted by the Associated Craft Butchers of Ireland amongst the 48 establishments notified of the rates agreed with the Union. This survey indicated that 11 respondents indicated that they did not pay the rates prescribed. Mr Bresnan said that he is a member of the Associated Craft Butchers of Ireland but was not asked to participate in the survey.

Finally, the Court heard evidence concerning the financial circumstances of the Employer to the effect that it would be unable to pay the rates claimed by the Union. It is unnecessary to recite the detail of this evidence for the purposes of this Recommendation.

Conclusions of the Court

The import of the Union’s claim is to extend the scope of the collective agreement concluded between it and the Cork Masters Association to an establishment that is not party to the agreement. Normally a collective agreement is binding only on those who are party to the agreement either directly or through their representative bodies or trade unions. An exception to that general principle is were the collective agreement is registered with the Court pursuant to s. 27 of the Industrial Relations Act 1946.

It is, of course, open to the parties to the collective agreement in issue in this case to apply to have it registered under that statutory provision provided they meet the criteria set out in s.27 of the Act of 1946. The effect of registration would be to extend the scope of the agreement to all worker and employers to whom the agreement is expressed to relate. However, if the Union seeks to achieve an equivalent result by invoking the process provided by the Industrial Relations (Amendment) Act 2001, as amended, the Court should be guided in its consideration of that application by criteria analogous to that prescribed for registering an agreement under s.27(3) of Act of 1946.

A central requirement for the registration of an agreement under the Act of 1946 is that the parties to the agreement are substantially representative of the workers and employers to who the agreement is to apply, thus establishing what could be regarded as the norm in the sector or industry concerned. In the present case the Court is satisfied, on the evidence, that the Union is substantially representative of Operative Butchers in the greater Cork region. However, the evidence does not go far enough to establish that the Cork Master Butchers Association is substantially representative of employer in the trade generally within the region. Nor is the Court satisfied on the evidence adduced that the rates provided for by the collective agreement in issue are accepted by employers generally within the region as constituting a pay norm as that term is generally understood.

Having regard to these considerations, and the fact that any recommendation which the Court may make has the potential at lease to result in the imposition of a legal obligation on the employer concerned, that Court does not consider that a sufficient bases existed upon which it could recommend concessions of the Union’s claim.

Accordingly the Court does not recommend concession of the Union’s claim.



Signed on behalf of the Labour Court



Kevin Duffy
22nd February 2010______________________
AHChairman



NOTE

Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.