FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ROADSTONE WOOD LIMITED (BUNRATTY SITE) (REPRESENTEB IRISH BUSINESS AND EMPLOYERS CONFEDERATION) - AND SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Interpretation of Company/Union Agreement as it pertains to the Bunratty Site
BACKGROUND:
2. The dispute concerns 3 "direct" drivers and what the Union considers the unfair use of contract drivers employed by the Company. It relates to the bulk-cement-delivery aspect of the business operating at Bunratty. The 3 drivers concerned have been with the Company for between 6.25 years - 7.25 years. Whilst the Union acknowledges that the Company has the right to hire contract drivers it contends that work that is proper to the 3 drivers, as per the Company/Union Agreement, is being given to contract drivers first. This has had a severe impact on the earnings of the 3 drivers. The Company's case is that there is a rota in place for 20 years which is fair to all drivers.
The dispute was referred to the Labour Relations Commission (LRC) and a conciliation conference took place. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 28th September, 2009, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 4th October, 2011, in Limerick, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The norm in other Roadstone locations is that directly-employed drivers are given preferential allocations of loads in relation to early morning concrete pours and weekend work.
2. It is a regular feature that the 3 direct drivers are sitting at home while work that is proper to them is being done by contract drivers. This is neither an acceptable nor agreed position. The terms of the Company/Union agreement clearly suggest that the use of contract drivers would be in limited circumstances.
COMPANY'S ARGUMENTS:
4. 1. The rota has been in place for 20 years and it was agreed with the 3 direct drivers when they joined the Company. There was no problem with them until approximately 3 years ago.
2. The rota provides the first load of each day to the longest-serving haulier who has been with the Company for 20 years. The next 3 hauliers on the rota have 13-14 years' service. The 3 direct drivers are next on the rota. They also have a reasonable opportunity to earn overtime
RECOMMENDATION:
- The matter before the Court concerns an interpretation of the Company/Union “Comprehensive Productivity Agreement Craft and General Workers 1985” as it relates to the use of work undertaken by contract drivers at the Company’s Bunratty site.
The Union stated that the scope of the Agreement as provided for under Clause 3.5 “Outside Services” allows for the use of contract drivers, however, it maintains that this facility is only available following discussions and agreement with the employees concerned.
The Company disputed the reference to Clause 3.5 and held that its right to determine the mix of Company Fleet and Hired Haulage vehicles was based on Clause 3.6 of the Agreement, “Hired Haulage”. It held that there was a very long standing practice of allocating work on a rota basis, recognising the seniority of drivers whether hired haulage drivers or directly-employed drivers. Furthermore, it told the Court that directly-employed drivers had only been employed for the past seven or eight years whereas hired haulage drivers had been engaged for over 20 years and had originally come about when the Company moved from directly employing drivers to engaging owner-drivers.
The 1985 Agreement states as follows :-- 3.5 Outside Services
It is agreed that each Company will, if necessary, following prior consultation and agreement with the employees concerned, agreement not to be unreasonably withheld, contract work out, buy completed work in, employ contractors within the Company's Locations, Departments, Divisions or Workshops for either work of a Capital Expenditure/Development nature, or of a Maintenance/Repair nature in any of the following circumstances:-
a) If the volume of work to be carried out in any specific period of time is greater than can be reasonably handled by our permanent employees.
b) If the job necessitates the use of any machine, tool, piece of plant and equipment or special item that the Company does not possess and cannot be reasonably expected to purchase.
c) If the work demands expertise and/or skills outside the Company's normal range.- d) If it would be significantly more expensive for the Company to do the work
e) In the event of a major breakdown which could cause loss of business.
f) The Company reserves the right to employ outside security firms.
Note: Only Contractors or Suppliers employing Trade Union Labour will be utilised.
3.6 Hired Haulage
The quarrying and concrete products industry is very capital intensive. In view of the investment demands this places on each Company it is not possible for each Company to provide a total company fleet and accordingly they must use hired hauliers and owner drivers.
It is agreed that Management will determine the mix of Company Fleet and Hired Haulage vehicles within each Region and Product Type as appropriate to the investment requirements. There will be prior consultation and agreement with the Trade Unions before any major change will take place in the existing mix of Company fleet/Hired Haulage.
Agreement shall not be unreasonably withheld.
- d) If it would be significantly more expensive for the Company to do the work
The Court notes that the practice of engaging hauliers to deliver its concrete products at its site in Bunratty is a long established practice and was in place long before the Company commenced employing direct employees to drive its vehicles. Furthermore, the Court notes that since 1985 there has been an agreement in place which provides for the use of hired hauliers (and owner-drivers) and gives management the right to determine the mix of drivers provided it enters into consultation and agreement with the Trade Unions where there is any major change to that mix.
It would appear to the Court that there was no issue with the mix of drivers being used until the downturn in the construction industry commenced in 2007. Now there is a perception among the directly-employed drivers that they are not getting their fair share of the workload. The Company informed the Court that the work is being evenly distributed between the haulage drivers and those directly-employed to a point where the latter are working hours close to the maximum permissible under the Organisation of Working Time Act, 1997.
Having considered the submissions of both parties, the Court is of the view that Clause 3.6 is the relevant Clause in this case. The Court recommends that greater caution should be taken to ensure that there is an even distribution of work between the haulage drivers and those directly-employed and, accordingly, recommends that regular consultation should take place with the Union to ensure such an even distribution.
The Court so recommends. - 3.5 Outside Services
Signed on behalf of the Labour Court
Caroline Jenkinson
17th October, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.