FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : BORD NA MONA - AND - BORD NA MONA GROUP OF UNIONS DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Application of T2016 (Transitional Agreement)
BACKGROUND:
2. The issue before the Court concerns a claim by the Unions on behalf of their members for the retrospective application of increases in pay in line with those proposed in the Towards 2016 Transitional Agreement. It is the Unions claim that in December, 2008 they formally served a claim on the Company for the application of the pay increases due. The Company responded to this claim in February, 2009 rejecting it on the basis that pay increases would be inappropriate and undesirable given the economic climate. The Company's position is that the Agreement is no longer valid.
The dispute was not 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 matter was referred to the Labour Court in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 15th April, 2011.
UNION'S ARGUMENTS:
3. 1 The Company is profitable. It did not plead inability to pay as it was entitled to do under the terms of the Towards 2016 Agreement. Consequently, it should honour its commitments and obligations by retrospectively implementing the basic pay increases from the due dates in 2009, in accordance with Section 1.7 of the Agreement.
2 IBEC walking away from the Agreement in December, 2009 is of little relevance as the Agreement was in place when the pay increases were due and the Unions claim for the increases was served on the Company.
3 Three comparable companies answerable to the same Government Departments have all paid the first phase of the pay increases due under the Agreement. Two companies have paid the second phase and one is in discussions over payment. This will leave the Company as the only commercial semi-state company in the energy sector who will not applied the terms of the Agreement.
COMPANY'S ARGUMENTS:
4. 1 The pay and dispute resolution terms of the Transitional Agreement have no current validity. The Company cannot be expected to increase pay in line with the terms of an agreement, when it is clearly recognised that such a formal agreement no longer exists.
2 The prudent and correct decision for the Company is to protect its employment base and strengthen the business rather than increasing payroll costs.
3 The application on a wage increase would significantly increase the cost base of the Company at a time when it is facing significant challenges.
RECOMMENDATION:
The subject matter of this dispute is a legacy from the period prior to the effective termination, in December 2009, of the pay agreement associated with the Towards 2016, Transitional Agreement. The Unions are claiming payment of the two phases of the Agreement both of which fell due for payment before that date. They claim that workers in what they regard as comparable commercial State Enterprises benefited either directly or indirectly from both phases.
The Court is satisfied that the claim for implementation of the National Pay Agreement was served in late 2008 and that the claim was in process locally during 2009 and before the Agreement was effectively terminated. The Company never claimed inability to pay the terms of the Agreement. They told the Court that they considered it inappropriate to do so having regard to the general economic conditions prevailing at that time. Moreover, the Company contends that they benchmark pay against industry generally rather than against other commercial State Enterprises. However the Court was not furnished with any details of the range of employments to which the Company referred nor was it given any details of the extent to which those employments did, or did not, implement the Agreement in issue either in whole or in part.
In the Court's view there is no justifiable reason as to why the workers associated with this claim should have been treated less favourably than those in comparable State Enterprises and none was advanced by the Company. In that regard, from the information made available to it, the Court is satisfied that those comparable employments implemented the first phase of the Agreement where that fell due before December, 2009.
In all circumstances of this case the Court is satisfied that the Unions' claim is valid in so far as it relates to the first phase of the Agreement. The Court recommends that the parties enter into further negotiations on the basis upon which that aspect of the claim can be satisfactorily addressed.
Signed on behalf of the Labour Court
Kevin Duffy
9th May, 2011______________________
DNChairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.