FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : GMC CIVIL AND MECHANICAL ENGINEERING LTD & BORD GAIS EIREANN - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Hayes Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Implementation Of Agreement On Bord Gais Eireann Contract
BACKGROUND:
2. The issue before the Court concerns the interpretation of a proposed agreement between the parties. The purpose of the agreement was to provide the smooth transfer of the Bord Gais contract and the transition of staff from Enterprise Managed Services Ltd to GMC Civil and Mechanical Engineering Ltd. The paragraph regarding the use of sub contractors is in dispute. The dispute arose due to the Company's need to lay off six workers.
The dispute could not be resolved 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 19th January, 2010 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 3rd March, 2010.
UNION'S ARGUMENTS:
3. 1 The Union contends that staff who transferred over cannot be laid off while the contract remains with GMC. All Enterprise Manged Services Ltd.employees had the option of transferring with the period contract and preserving the service on the Bord Gais network or alternatively integrating into GMC and a liability to be deployed on any of their contracts. It is unfair to employees who opted to stay with the period contract to now be displaced by employees who opted to leave the Bord Gais contract and work on other GMC contracts.
2 At an early Labour Relations Commision hearing, Bord Gais agreed with the Union's interpretation of the agreement but have now chosen to change its position.
COMPANY'S ARGUMENTS:
4. 1 The current lay offs in dispute were not anticipated at the time of the transfer. The Company contends that the decision to lay off is a normal adjustment to current market conditions which the Company is entitled to make.
2 The agreement was never intended to apply to decisions made beyond the transfer date which are not related to the transfer. The Company contends that regardless of any difference of interpretation of proposed terms within the document, the current decisions on lay off are outside the self proclaimed terms of reference of the memorandum
RECOMMENDATION:
The Court has been asked to interpret the meaning, scope and intent of the document headed "Agreement for the transfer of contract from Enterprise Gas to Gerry McCloskey Ltd" that was concluded on October 23rd 2008, under the auspices of the Labour Relations Commission as it relates to the liability of staff for selection for lay off and redundancy within Gerry McCloskey Ltd.
Having carefully considered the submissions of all the parties in the case, the Court is satisfied that an agreement exists that binds Bord Gais Eireann Ltd., GMC Civil and Mechanical Engineering Ltd., and SIPTU and that the intention of the Agreement was to ensure that staff transferring under its provisions would:-
- Be in the same position after the transfer as they would have been had Period Contract 05/52 remained with their original employer
- Be the first resource to be used for existing work, under the Period Contract 05/52
Accordingly the Court finds that for the lifetime of Period Contract 05/52 suitably qualified transferred staff are entitled to first call on all work identified in that contract, in preference to all others, including direct employees of McCloskeys and sub contractors and or their employees.
The Court finds that the "Agreement for the transfer of contract from Enterprise Gas to Gerry McCloskey Ltd" is tied to period contract 05/52 and expires with it.
Signed on behalf of the Labour Court
Brendan Hayes
26th March, 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.