FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001, AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004 PARTIES : DELL DIRECT (REPRESENTED BY MR TOM MALLON INSTRUCTED BY HARRISON O'DOWD SOLICITORS) - AND - COMMUNICATIONS WORKERS UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Union application under the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.
BACKGROUND:
2. The dispute was referred to the Labour Court on the 19th October, 2010, 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 over a period of three days, 17th December, 2010, on the 31st March, 2011 and finally on 7th April, 2011.
RECOMMENDATION:
This matter comes before the Court by way of an application by CWU (the Union) for an investigation of a trade dispute between it and Dell Direct (the Company). The application was made on 19th October 2010 pursuant to Section 2 of the Industrial Relations (Amendment) Act 2001, as amended (the Act). The issue referred by the Union concerned: -
- “imposed changes to employee’s terms and conditions, refusal of Trade Union representation at individual grievance and disciplinary hearings and refusal to engage to resolve.”
The conditions precedent to the Court’s jurisdiction to conduct an investigation are contained at Section 2 (1) of the Act as follows: -
- 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]
- (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,
Mr. Mallon submitted that the entire mechanism adopted by the Company in relation to the resolution of individual and collective concerns constitutes collective bargaining. The Company’s policy world-wide is to maintain an atmosphere of open communication and trust between employees and management, all employees are encouraged to deal directly with their team leaders and other members of management regarding work-related issues or terms and conditions of employment.
Ms. Fionnula N� Bhr�gáin on behalf of the Union questioned the legitimacy of the Company’s purported collective bargaining process and did not accept the contention that there has been a resolution of the dispute. She contended that the subject matter of this application affects several employees in the same way and that what internal procedures there are to address individual issues were utilised by employees in the absence of a genuine collective alternative. She held that the employees, in the absence of a genuine collective forum to address the issues, were obliged to rely on raising their concerns individually. This process was exhausted when the Company found against the employees on all occasions.
Ms. N� Bhr�gáin stated that the “Winning Culture Team” which the Company relies upon to substantiate its contention that it engaged in collective bargaining, excluded terms and conditions of employment from its remit.
The Union contacted the Company in October 2009 on behalf of a number of employees, inviting it to discuss the proposed changes to the 24/7-shift system. In August 2010, it sought assurances from the Company that employees could avail of trade union representation at individual hearings and seeking to have the Dell Grievance Policy amended to reflect this assurance. The Company rejected this approach. The Union then invoked the procedures prescribed by the statutory Code of Practice on Voluntary Dispute Resolution. (S.I. 76 of 2004) and the claim as set out in opening paragraph of this Recommendation. The Labour Relation Commission invited the Company to participate in the process envisaged by the Code of Practice and the Company refused to participate.
Background
The Company’s site based at Cherrywood is part of Dell Inc. a multinational information technology corporation based in the United States. There are 1200 employees employed at the Cherrywood site.
Due to the overall economic situation in the Company the necessity arose in 2009 to take measures to maintain its competitiveness and to examine its overall cost structure. As a result of this examination the Company sought to standardise its shift systems and proposed changes to the terms and conditions of employment of 52 of its workforce to enable it to remain competitive and effective in the global economy. Therefore, at the beginning of July 2009 it announced proposals to standardise the 24/7 working hours, shift patterns and shift rotations, as follows:
�standardise 24/7 shift patterns so that all 24/7 teams work to a rota of 4 days on 3 days off;
�working hours to be in line with contractual hours – the proposals being that the Storage team would work 36 hours per week and the Server team 36.75 hours per week;
�standardise shift allowance to a 25% for all 24/7 team members, and
�eliminate meal allowances
By letter dated 30th July 2009 management became aware that a collective group of 31 named employees were objecting to the proposals and were seeking a meeting to discuss their objections. This letter was followed shortly afterwards with a second letter (not dated) now signed by thirty-four of the fifty-two employees affected, setting out the same point.
The Company engaged in a consultation process with all affected employees over a two-month period, beginning on 1st July 2009 and ending on 28th August 2009. This process took the form of team/group meetings, one to one meetings and use of the 24/7 Standardisation Information Site to obtain feedback and concerns and to facilitate consultation.
Finally following a meeting with staff on 19th August 2009, in a letter dated 4th September 2009 the Company wrote to all employees affected setting out the concessions/amendments it was making to its original proposals. The letter statedinter alia:
- “Having carefully considered your collective feedback and concerns in relation to the above initial proposals – we have made further adjustments in an effort to accommodate genuine concerns.”
- “The consultation period is now closed and the Business must move forward. Thank you sincerely for your participation in the process be it on an individual basis or through collective representation.”
Shift Pattern
•Sequence of shift patterns has been altered so that there is a forward rotation of starting times from early to late and that an afternoon shift follows a night shift.
Working hours
•The working hours for both Storage and Server 247 teams will be standardized at 36.5 hours per week – a summary of the shift patterns is attached.
Flexible Working
•Working from home will be available where appropriate, subject to Team Leader Agreement, IT infrastructure capability, and remote working policy.
Other Adjustments
•Revised implementation date of 3 Jan 2010
•Entitlement to meal allowance when working night and weekends will remain – however guidelines regarding claim procedure will be formalised
Other queries regarding holidays and training are addressed as follows:
•No change to current method of calculating holiday arrangements – 247 employees will continue to receive annual holiday entitlement based on 21 days annual leave
•247 training road map to be further developed
And proceeded to state:
- “If you decide that you do not want to work the standardised shift pattern please raise this immediately with your Team Leader who will listen to any outstanding concerns you may have. You Team Leader can discuss possible options including reasonable alternative re-employment or voluntary severance if requested, these discussions will need to be completed by 18 September 2009. If the Team Leader cannot resolve any such issues, you can avail of the Dell Grievance Policy.”
Following the letter of 4th September 2009, a firm of Solicitors wrote to the Company by letter dated 18th September 2009, purporting to act for twenty-three employees who were objecting to the implementation of the proposed changes and indicating that all further communication was to be directed to their office. This was followed by a second letter dated 21st December 2009 from the Solicitors, now acting on behalf of fifteen employees reiterating their objections to the proposals.
Subsequent to the letter of 18th September 2009 and the process that was in being at the time, on behalf those collectively represented by the Solicitors, a number of the objecting employees (already represented by the Solicitors) also sought membership and individual representation through the Union. In addition to these events both witnesses, (Mr. Harrold and Mr. Brewster who gave evidence on behalf of the Union/employees), were simultaneously processing individual grievances through the Company Grievance Policy. Furthermore, Mr. Harrold and Mr. Brewster told the Court they were ‘working under protest’ and processing claims under the Payment of Wages Act 1991 to the Rights Commissioner/Employment Appeals Tribunal. In their letters dated 18th September and 21st December 2009, the Solicitors informed the Company that if it introduced the proposed changes that it would instigate legal proceeding against it under the 1991 Act.
The Company’s final concessions included further adjustments to the shift patterns and working hours; the length of the night shift was reduced by thirty minutes; the headcount requirement was reduced on night shift from four people to three people, thereby reducing the frequency of night shifts from one in five to one in seven for Server teams and from one in four to one in eight for Storage teams, and a two year buy out of loss of earnings was introduced for those whose shift allowance was reducing from 28% to 25%.
The new 24/7 shift system has now been in place since January 2010 and all those affected who have not taken voluntary redundancy are operating the new system. However, Mr. Harrold and Mr. Brewster are doing so ‘under protest’ while being included in this claim before the Court and with further claims to the Rights Commissioner/Employment Appeals Tribunal.
Evidence before the Court
In addition to having received written submissions from both parties on the facts in issue and the law applicable, the Court heard oral evidence from:
Evidence of Mr. Mark D'Arcy, Site Leader for Technical Support:
Mr. Mark D'Arcy gave evidence on behalf of the Respondent. He is the Director of Storage and Solutions for EMEA (Europe, Middle East & Africa) and Site Leader for Technical Support at the Company site in Cherrywood and has been with the Company since 1998. Of the 1200 employees based at Cherrywood, the Services Group comprise about half of these. Amongst the employees in the Services Group there were 52 technicians employed in the 24/7 Call Centre at the relevant time of this dispute. He said that the Company does not recognise the Trade Union.
Mr. D'Arcy said that in line with the Company's policy worldwide, the communication process in Cherrywood is part of the Dell culture - at team level, at department level and companywide. He outlined details of the various communication fora operating within the Company and said that all are used to facilitate relations between employer and employees. While he accepted that the structure of the “Winning Culture Team” excluded terms and conditions of employment from its remit, he stated that in reality it can consider any concerns, take feedback and make proposals.
Mr. D'Arcy explained that the Company's Irish operations compete with other Dell sites for work. In 2009 the Irish operation had to review its competitivenessvis a visother Dell sites as negotiations take place at senior level to decide on the location for various Dell work. The cost of employing an employee was found to be $11,000 higher in Dublin than in United States. As a result it was decided not to recruit any further staff in Technical Support in Cherrywood, it identified a large portion of work to be moved to India and consequently made 19 people redundant.
In addition to the steps outlined above, the Company also decided to examine its overall cost structure in the Call Centre in Cherrywood. Having conducted the review it came up with the proposals which are the subject of the substantive case in dispute before the Court. The Company in Cherrywood also examined its overall value to Dell and examined how it could compete internally within the organisation. As it had the only 24/7 site in Europe, the only multilingual site in Europe and the only high complexity site in Europe, it decide to capitalize on these assets by significantly increasing investment to increase the employee skill set so as to be the best placed to attract any new work for Dell, e.g. it invested $250,000 into VM Ware Certification, it increased its training budget and developed programmes across various technologies. Despite a Company policy of non–hiring, these actions required it to recruit extra technicians and to increase the numbers employed from 52 to 80 technicians for 2010, and it expects to recruit a further 40 - 60 technicians for 2011.
Mr. D'Arcy said that the alternative to these measure would have been a necessity to downsize by attrition and he said that doubt might have been cast on the viability of the Cherrywood site.
Mr. D'Arcy recounted the details of the process adopted when the Company’s changes for the 24/7 Call Centre were being proposed. It began with group sessions to discuss the proposals and as the technicians work in shifts, these discussions were held with each shift, the witness and another Operations Manager attended these meetings. Mr. D'Arcy explained that as the proposals were put to the employees, there were a number of concerns and demands raised. This was followed by a group meeting with the Executive Director, at which there was a lively debate, management took note of employees’ concerns/demands and a list outlining the main concerns was then developed. On the Company’s internal web site, management responded to the questions raised, listed all possible ways it intended to deal with employee demands and made a number of amendments to its proposals.
The witness said that not all employees were satisfied with this process and two employees decided to submit claims under the Payment of Wages Act to a Rights Commissioner, both of which are currently on appeal to Employment Appeals Tribunal.
In addition for those employees who felt that the proposed changes would significantly impact on their lives, the Company offered a voluntary severance scheme, and 13 employees opted for this. However, as the Company did not need to reduce its numbers at the time, new technicians were recruited to the Call Centre and it now has 80 technicians.
He said that as a result of the meeting held on 19th August 2009 and the various discussions held with employees either individually or through a spokesperson, all of the concerns raised by employees were identified. As a result the Company made significant changes to the proposals. Following these changes the opportunity for employees to raise new concerns was extended for a further two weeks. No new demands came forward. Management notified all employees concerned by letter dated 4th September 2009 that the process was closed.
Mr. D'Arcy told the Court that by letter dated 18th September 2009 a firm of Solicitors wrote to the Company, representing 23 employees. This letter outlined their concerns regarding the proposed changes to their employment terms, which they stated had not been accepted by the employees involved.
Mr. D'Arcy said that it was not possible to please everyone and management requested those who still had grievance to process it through the Company's grievance policy. At that point in time the Company’s policy has not been amended to include a clause stating that an employee could be represented by a fellow employee.
A further letter was sent from the Solicitors on 21st December 2009, this time representing fifteen employees, informing the Company that if it decided to proceed with its planned implementation of the proposals to the 24/7 shift system it would instigate legal proceedings under the Payment of Wages Act, 1991.
Mr. D'Arcy said that the proposed changes affected all 52 employees at the time; they were all invited to attend meetings to discuss their concerns which were taken on board by the Company. The final proposals were sent to all concerned and the process entered into resulted in significant adjustments being made to the Company's original proposals. In particular, he said it was significant to introduce a 6am shift and to allow employees to work from home. This was an issue raised by the staff from the very outset. The changes also involved moving the date out for implementation in order to address their concerns. Other significant changes were the reduction of numbers working on night shifts from 1-5 to 1-7 in the Service Team, and from 1-4 to 1-8 in the Storage Team.
Of the 52 employees affected by the proposals, thirteen availed of the voluntary redundancy package; thirty-seven are working the new system without complaint; seven are represented by the Union in this application - two of these have informed management that they are ‘working under protest’ and have issued proceedings under the Payment of Wages Act 1991.
Evidence of Mr. John Harrold, Technician:
Mr. John Harrold gave evidence on behalf of the Union. He has been
employed with the Company since 1996 in Technical Support, and has been on 24/7 shift since 1999. He said that when the Company's proposed changes were communicated to him he first raised his concerns with Mr. D'Arcy and Mr. McVeigh. At their meeting he asked if he would be paid compensation for the proposed changes and was told that there would be no compensation paid. At a further meeting Mr. McVeigh showed him the proposed shift schedule and the witness said he was not satisfied. Subsequent to that, Mr. Derek Temple Operations Manager told him that the process was finished and that the Company had received legal advice on the matter.
Mr. Harrold said that he then heard that a colleague was seeking his own legal advice on the matter and he joined in that referral along with many others. When questioned as to whether he felt he was operating outside the normal Dell process by going outside for advice, he replied that he did but that he needed to understand the legality of the Company's proposals. Mr. Harrold accepted that it was reasonable for management to assume that he was included in all correspondence where objections to the proposals were raised, as his name was quoted on all letters sent. He told the Court that he did not set the record straight. He did not inform management that his name appeared on the lists without his authorisation. He accepted that he had contributed financially to the costs involved, however, he said that he did not wish his name to be included as he wished to pursue an individual case. He said that he was aware that the Solicitor had written to the Company quoting 23/15 names as signatories, including his name. He said that essentially he was in agreement with the contents of the letters, however he did not write to the Solicitors to inform them that he did not given authorisation for his name to be quoted.
Mr. Harrold told the Court that he joined the Union in September 2009, prior to letters from the Solicitors going out.
When he received the letter dated 4th September 2009 from Mr. Derek Temple, Operations Manager, saying the process was now closed he felt that the only way to make progress on his opposition to the proposed changes was to join the Union along with his colleagues. They then proceeded to raise their grievances under the Company's grievance procedure and he had an individual meeting with his immediate Manager and one with HR. He said that the reason he went this route was because there was no other forum to raise collective issues.
Mr. Harrold told the Court that by letter dated 1st December 2009, he informed Mr. Declan Deegan, HR Manager that he was opposed to the changes made to his condition of employment and he was not satisfied with the response he had received so far in relation to his grievance. He said that he now wished to raise the matter with Mr. Deegan directly and wanted to be accompanied by his trade union representative. Mr. Deegan informed him that he no longer worked in Cherrywood and referred his request to Ms. Cathy Farrell. Mr. Deegan informed the witness that he could not avail of external representation at the grievance meeting.
Mr. Harrold said the grievance process was a two stage process, he first met with Ms. Maria Mulcahy HR Department which was unsuccessful; he then appealed that decision to Ms. Cathy Farrell, HR Manager, on each occasion he was accompanied by a colleague. He received a letter dated 14th December 2009 from Ms. Mulcahy rejecting his grievance appeal.
Mr. Harrold told the Court that he did not authorise anyone to make concessions to the Company’s proposals on his behalf. He was of the view that the changes made by the Company were not significant changes as he was of the view from the outset that the Company had no legal right to expect him to work extra hours compared with the hours he had been working for the previous seven years and he was pursuing that case.
Evidence of Mr. David Brewster
Mr. Brewster gave evidence on behalf of the Union. He stated that he has been employed for eleven years with the Company as technician in the 24/7 team. In his testimony he referred to the meeting, which took place on 19th August 2009 to discuss the Company’s proposed changes for the standardisation of 24/7 working hours. He said that the meeting dealt with the question of the legality of the proposed changes by the Company. He said that a group of technicians had met to discuss the legal issue; all had contributed to the cost of the Solicitors. Three teams were affected, and each team had collected money. He said that management were left with the view that matter was still in dispute.
Mr. Brewster said that concessions on the Company’s proposals had emerged prior to the meeting, from other meetings where feedback was taken, following which soundings were taken and finally the original proposals were amended. In his view there was no bargaining on the matter. He said that a group of technicians rejected the proposals on the basis that they were illegal and accordingly they wrote to management in July 2009 stating that position. The letter dated 4th September 2009 was the written response from management.
Mr. Brewster was of the firm belief that the Company had no legal right to make the proposed changes so therefore; he had no interest in discussing the Company’s proposals either individually or collectively. He proceeded to submit his own individual grievance, which was not successful.
The Issue
The Court must decide, on the evidence, if the conditions precedent to its jurisdiction have been met. These conditions are: -
�That a trade dispute exists between the company and a grade, group or category of employees.
�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.
�That the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute.
Existence of a trade dispute.
At the outset the Court must be satisfied that a trade dispute existed at the time the case was referred to the Court, namely the 19th October 2010 and furthermore 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 the parties before the Court are the correct parties to the dispute or difference; whether the dispute still exists and if the issues in contention in fact form the correct subject matter of a trade dispute.
In this regard the Company contended that there is no trade dispute between it and the Union; it contended that the issue before the Court was brought by the Union solely and not by any named member of the Union. Therefore there was no dispute between the Company and any of its workers.
The Union submitted the names of seven members, all employees affected by the changes to the 24/7 shift system and two gave evidence. The Court accepts on the evidence, that the parties to the dispute are the seven named technicians operating the 24/7 shift system and the Company. They are workers and employers and are correct parties within the statutory definition.
That however, does not dispose of the matter. In order for a trade dispute to come into being there must be a demand and a refusal to meet that demand.
Based on the evidence given in the course of the hearing the Court is satisfied that the employees associated with this referral raised objections to certain proposed changes affecting their conditions of employment. These objections were raised by them with the Company along with other similarly disaffected employees. Certain concessions were made by the Company in response to these objections. The majority of those associated with these objections accepted the Company’s proposals, as amended, and thirteen decided to leave the Company on agreed severance terms. However, seven opposed the decision of the majority and, having joined the Union, sought to invoke the jurisdiction of the Court for the purpose of having the matters referred to in their application investigated by the Court. Two of the seven also decided to pursue individual employment rights cases to the Rights Commissioner.
Before embarking on an investigation of these matters the Court must be satisfied that they constitute the subject matter of a trade dispute within the statutory meaning of that term. This requires the Court to consider whether genuine differences remain between the applicants and their employer at the time the referral is made.
It is accepted that the issues now relied upon as constituting a trade dispute were raised originally by a group of 34 workers. At all material times during the processing of this dispute internally they corresponded with the Company as a collective body, with a joint purpose and common objective and they wished the Company to deal with them as such. In the event the Company acceded to this position and dealt with the group collectively.
Having embarked on this course, it must have been implicit that any solution to the issues in dispute would have to be collective in the sense that, resolution would emerge in this context also. In the Court's view, from an operational perspective, any other approach would have been utterly impractical.
A number of concessions were made by the Company, which found favour with the majority of workers in dispute. Therefore, the Court is of the view that an agreement came into being between the collective body, of which the seven applicants were a part, and this agreement having been accepted by the majority of the workers affected, thereby resolved the dispute. From the evidence the applicants took part in the discussions leading to the final proposals and given the conduct of their prior dealings, it was now not open to the applicants to resile from that agreement.
Conclusions of the Court
In these circumstances any dispute which was in being between the group affected by the proposals and the Company was resolved. Consequently, the Court finds that there was no trade dispute in being at the date of this referral. Consequently, there is no necessity for the Court to consider whether other preconditions have been fulfilled. Accordingly the Court finds that it has no jurisdiction in this matter.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
3rd June, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.