LCR21534

The parties to this dispute met under the auspices of the Workplace Relations Commission Advisory Service. Agreement was not reached and the dispute was referred to the Labour Court by the TEEU on the 12^thMay 2017. A Labour Court hearing took place on 21^stJuly 2017.

The Dispute

The TEEU (the Union), pursuant to s.2(1) of the Industrial Relations (Amendment) Act 2001 - 2015 (the Act), requested the Court to investigate this trade dispute. The dispute concerns rates of pay, overtime pay, Public Holiday pay, Bank Holiday pay, on-call payments, call out payments and Health and Safety of a group of workers employed by Enercon Windfarm Services Ireland Limited (the Respondent) who are members of the Union and are described by the Trade union as Wind Turbine Technicians.

The issues giving rise to the dispute were previously referred to the Workplace Relations Commission in accordance with the provisions of the Code of Practice on Voluntary Dispute Resolution made under s.42 of the Industrial Relations Act 1990. However no resolution was achieved in that process and the Court received a report from the Workplace Relations Commission to the effect that no further efforts on its part would advance the resolution of the dispute.

The Respondent is a company which installs and services ENERCON Wind Energy Converters, commonly known as wind turbines across Ireland.

Approach of the Court

Section 2 of the Act sets out certain requirements which must be complied with prior to the Court conducting an investigation. The Act as amended at Section 3 states

• 3.—Any question as to whether the requirements specified in section 2 have been met may, as the Court considers appropriate, be determined by the Court either by way of a hearing preliminary to the Court's investigation under that section or as part of that investigation.”.

The Court invited the parties to make submissions as regards the requirements specified in section 2 and indicated its intention to determine this aspect of the within case prior to its investigation under Section 2.

Requirements specified at Section 2.

It is common case that it is not the practice of the Employer to engage in collective bargaining.

The substantive matter between the parties is whether the requirements as specified in the Act at Section 2(3) have been complied with.

The Act provides at Section 2 (3) as follows:

• The Court shall decline to conduct an investigation of a trade dispute under subsection (1) where it is satisfied that the number of workers who are party to the trade dispute concerned is such as to be insignificant having regard to the total number of workers employed by the employer concerned in the grade, group or category to which the trade dispute concerned refers.

The Trade Union did outline at the hearing that, of the 69 members who are party to the within trade dispute, 8 have been in membership since before 2013 and were in membership at the date of the making of the statutory declaration by the General Secretary of the TEEU, 6 have been in membership since 2013 and were in membership at the date of the making of the statutory declaration by the General Secretary of the TEEU, 15 have been in membership since 2014 and were in membership at the date of the making of the statutory declaration by the General Secretary of the TEEU, 20 have been in membership since 2015 and were in membership at the date of the making of the statutory declaration by the General Secretary of the TEEU, 15 have been in membership since 2016 and were in membership at the date of the making of the statutory declaration by the General Secretary of the TEEU and 5 have been in membership since 2017 and were in membership at the date of the making of the statutory declaration by the General Secretary of the TEEU.

The Employer confirmed that it did not dispute the content of the Union’s statutory declaration as regards the number of persons in the employment of the Respondent who were in membership of the Trade Union. The Respondent at the hearing confirmed that it accepted the assertion of the Trade Union made at the hearing as regards the length of time in membership of the members of the Trade Union.

The Respondent had, prior to the hearing and in accordance with the Act at Section 2A(2), requested the Court to examine matters specified in the statutory declaration of the General Secretary of the TEEU. The Respondent withdrew this request to the Court at the hearing.

The Respondent asserted that it had 147 persons in employment in what the Trade Union identified as the grade, group or category of Wind Turbine Technician. In making this acknowledgement the Respondent asserted that the term of ‘Wind Turbine Technician’ was not in usage in the Respondent company. The Respondent asserted to the Court that employees of the Respondent were engaged in a range of functions, carried a range of different qualifications and consequently received different levels of payment.

The Trade Union accepted the Respondent’s assertion that it employed 147 persons in the grade, group or category to which the within trade dispute refers.

Discussion and Findings

It is common case that it is not the practice of the Respondent to engage in collective bargaining. The Court has received a report from the Workplace Relations Commission in accordance with the Act at Section 2(1)(b)(ii).

The Court therefore finds that the requirements at Section 2 of the Act which are precedent to the conduct of an investigation in accordance with that section of the Act have been met in respect of Section 2 (1)(a) and 2(1)(b)(ii). The Court also finds that the conditions precedent at Section 2(1)(c) and (d) of the Act are met.

Both parties accept that the Respondent employs 147 persons in the grade, group or category to which the within trade dispute refers. Both parties also accept that 69 (46.93%) of those persons are in membership of the Trade Union and are party to the within trade dispute. In those circumstances the Court finds that the numbers of persons who are party to the within trade dispute are not such as to be insignificant having regard to the total number of workers employed by the Respondent in the grade, group or category to which the within trade dispute refers.

The Court therefore finds that the requirements of the Act at Section 2 which are precedent to the conduct of an investigation in accordance with that section of the Act have been met.

Decision

For the reasons stated above the Court is satisfied that the requirements of the Act at Section 2 have been complied with in their entirety and the Court will now proceed to carry out an investigation as requested by the Trade Union under Section 2 of the Act.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
31 July 2017Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Louise Shally, Court Secretary.