LCR21729

The within dispute was referred to the Court by SIPTU (‘the Union’) on 9 March 2018 under section 2(1) of the Industrial Relations (Amendment) Act 2001 (‘the Act’). The Union submits that it has not been the practice of Zimmer Orthopaedics Manufacturing Limited (‘the Company’) to engage in collective bargaining within the meaning of the Act. It further submits that the terms and conditions of its members employed by the Company are less favourable than those that apply in the sector in which the Company operates.

The Company submits that there are two jurisdictional issues that arise for consideration and decision by the Court before it can commence an investigation of the within dispute. Firstly, the Company submits that there is nobona fidetrade dispute in being between it and the Workers represented by the Union. Secondly, it submits that the Union has not demonstrated - as required by section 2(3) of the Act - that the number of workers whom it represents and who are party to the trade dispute is not 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’.

Submissions

The Court invited and received detailed submissions from the Parties in relation to the section 2(3) jurisdictional issues. The Union submits that it has fifty-three members in what it refers to as ‘the general operative’ grade. All fifty-three workers are employed in the Company’s Shannon plant. The Union furnished the Court with an affidavit sworn by Mr Joseph O’Flynn, General Secretary, in fulfilment of the requirements of section 2A of the Act.

Mr Connaughton SC submits:

• 
  •The Company operates two plants – one in Shannon and the second in Oranmore, Co. Galway;

  •All Workers in both plants are employed by the Company. Therefore, the ‘total number of workers’ to be considered for the purposes of section 2(3) is the total number in the relevant grade, group or category employed across both plants;

  •The Company does not have a grade, group or category of workers entitled ‘general operatives’. It employs hourly-paid Workers who perform a range of different and distinct roles (e.g. production work; cleaning room work etc) that are not interchangeable;

  •The Company employs two hundred and seventy-five hourly-paid Workers in Shannon and one hundred and thirty-five such Workers in Oranmore i.e. a total of 410 across both plants;

  •The Union has not identified what grades, groups or categories its fifty-three Members are employed in, nevertheless (and without prejudice to his submission that the Company does not have a grade comprised of interchangeable general operatives) fifty-three Workers comprise less than 20% of the total number of hourly-paid Workers employed by the Company across its two plants;

  •The numbers of Workers in the membership of the respective applicant Trade Unions relied on to invoke the jurisdiction of the Court in previous applications under the Act (e.g. LCR21388; LCR21534 and LCR21242) were a significantly higher proportion of the relevant grade, group or category concerned.

Section 2(3) of the Act provides:

• “(3) 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 effect of section 2(3) of the Act is that a Trade Union cannot invoke the Court’s jurisdiction under the Act until it has first discharged the burden of establishing that the number of workers it has in membership and who are party to the trade dispute is not 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 Union’s case is that it has fifty-three members who are employed as hourly-paid ‘general operatives’ in the Company’s Shannon plant. It does not have any Workers in the Oranmore plant in membership. The Company has stated that it employs hourly-paid workers in a variety of non-interchangeable roles and does not have a grade, group or category of interchangeable general operatives. The Union has not specified what roles its members are employed in.

Having given careful consideration to the Parties’ submissions the Court finds that the Union has not discharged the burden of proof imposed by section 2(3) of the Act. It follows that the Court must find that it has no jurisdiction to investigate the trade dispute referred to it in the within application under the Act.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
MK______________________
7 June 2018Deputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Mary Kehoe, Court Secretary.