LCR21741

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 on 12^thMay 2017 under the provisions of the Enhanced Code of Practice on Voluntary Dispute Resolution (SI 76/2004) in accordance with the provisions of the Code, and the Industrial Relations (Amendment) Acts 2001-2004 as amended by the Industrial Relations (Amendment) Act 2015.

A Labour Court hearing took place on 21^stJuly 2017 and the Court issued Recommendation LCR21534 on 31^stJuly 2017 stating that ‘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’.

Further hearings took place on the following dates:

• 20^thNovember 2017.

• 8^thJanuary 2018.

• 16^thMarch 2018

Submissions were received from the Respondent on 13^thJuly 2017, 11^thOctober 2017, 12^thDecember 2017, 8^thJanuary 2018 and 27^thFebruary 2018. Submissions were received from the Trade Union on 11^thJuly 2017, 9^thOctober 2017, 6^thDecember 2017, 23^rdFebruary 2018, 9^thMarch 2018 and 12^thMarch 2018.

The Court is satisfied that both parties were given full and adequate opportunity to set out their case and to address all of the matters which require to be considered by the Court in accordance with the Act.

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) and 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

Having determined that the requirements of the Act at Section 2 had been fully met, the Court proceeded to hear the case in its entirety.

The Act at Section 5, Subsections (3) and (4) provides: -

• (3) The Court shall not make a recommendation providing for an improvement in the remuneration and conditions of employment of a grade, group or category of worker unless it is satisfied that the totality of the remuneration and conditions of employment of the workers concerned provides a lesser benefit to the workers concerned having regard to the totality of remuneration and conditions of employment of comparable workers employed in similar employments.

  (4) When considering if the totality of remuneration and conditions of employment of a grade, group or category of worker provides a lesser benefit to the workers concerned having regard to the totality of remuneration and conditions of employment of comparable workers employed in similar employments, the Court shall have regard to—

  (a) the totality of the remuneration and conditions of employment of comparable workers employed in similar employments (whether such comparable workers are represented by a trade union of workers or are not represented by a trade union of workers), and

  (b) the comparability of skills, responsibilities, physical and mental effort required to perform the work in which the workers are engaged.

These provisions oblige the Court to consider if the workers who are party to the dispute and those with whom comparison is drawn are comparable. It also requires consideration of whether those workers are employed in a similar employment to those relied upon as comparators. If the Court is satisfied that the workers concerned are comparable with the identified comparators and that they are employed in a similar employment then the Court must go on to establish whether the totality of remuneration and conditions of employment of the claimant workers provides a lesser benefit having regard to that of the comparable workers in similar employments.

In the event that the Court concludes that the totality of remuneration and conditions of employment of the claimant workers does provide a lesser benefit to them than that of comparable workers in similar employments it may, in accordance with the Act at Section 5(1), make a recommendation giving the Court’s opinion on the matter and, where appropriate, its view as to the action that should be taken having regard to the totality of remuneration and conditions of employment, dispute resolution and disciplinary procedures in the employment concerned.

The Court decided to consider first whether the workers who are party to the within trade dispute are comparable workers to those whom they have identified in the claim before the court. The Trade Union contends that the workers who are party to the within trade dispute are comparable to workers employed by companies identified to the Court as Vestas, Siemens and GE Energy.

It is only if they are such comparable workers can the Court proceed to consider the other tests set out in legislation as a condition precedent for the making of a recommendation by the Court.

Summary Position of the Trade Union

The Trade Union submitted that the companies in which comparator workers are employed are engaged in the same economic sector as the Respondent in the within matter. The Trade Union submitted that all companies are engaged in the Wind Industry in Ireland and that within that industry companies are categorised as Original Equipment Manufacturer (OEM) companies or Independent Service Provider (ISP) companies.

The Trade Union submitted that the comparator companies are all OEM companies. They submitted that the Respondent company categorises employees into two teams, viz. Installation Teams and Field Service Teams. Installation teams consist of Installation Technicians, Grid Connection Technicians, Commissioning Technicians and 300HR Mechanics. Field Service Teams consist of Electrical Technicians and Mechanical Technicians.

The Trade Union submitted that all of the comparator companies with the exception of the Respondent employ qualified Electricians, Fitters and Mechanical craftspeople as a minimum standard for working on the turbines.

The Trade Union set out detail to the Court of the duties of the workers who are party to the within dispute and also set out a grid comparison of those duties with those of staff employed by the comparator companies.

Summary position of the Respondent

The Respondent submitted that the Installation Service Department do not contain teams of homogenous workers. Workers within these teams undertake different duties, have different skills, levels of qualifications and experience and are paid different rates of pay.

Then Respondent submitted that, given the variety of skills, duties, levels of qualifications and experience the workers cannot be viewed together as a grade, group or category of worker.

The Respondent submitted that no conclusion could be drawn on the information and detail supplied to the Court by the Trade Union as regards the skills and qualifications required for the roles in comparator companies or in respect of the comparability of workers in the Respondent company and the workers employed in the comparator companies.

Discussion and conclusion

The Court has been presented with submissions from the parties as regards the similarity or otherwise of the business of the Respondent company and those of the comparator companies. The court has been provided by the parties with detail of the breakdown of skills in the Respondent company teams. Those skills include electrical craftspersons, mechanical craftspersons, carpenters and person with no trades. The Court has been given detail as regards the team structure and the skill mix among teams in the organisational framework of the Respondent company.

The Court has been given very little information on the make-up of teams and skill mix and ways of working of the workers employed in the comparator companies. This deficit is a significant impediment to the Court’s capacity to understand fully the nature of the jobs of one set of workers in comparison to another set of workers.

The parties have disputed matters of fact on many aspects of the factual matrix of the actual jobs and work of the claimant workers and those with whom they seek to compare themselves.

In order for the Court to find that two sets of workers are comparable the Court must conclude that they are capable of being compared. The Act at Section 5(4)(b) gives guidance as to the nature of the comparison required to be undertaken when it sets out that, when considering the totality of remuneration of two sets of workers, the Court must take account of factors such as the skills, responsibilities, physical and mental effort required to perform the work under comparison.

Therefore, in order for the Court to conclude that two sets of workers are comparable, it must have information to suggest that a comparison is possible having regard to the statute. In essence, the Court must be provided with a clear view of the shape and nature of the jobs which it is asked to regard as comparable as between one and the other. It is clear to the Court that the combination of the work output of the workers concerned in this trade dispute results in the erection of wind turbines and their subsequent servicing. Similarly, it appears that the combined output of the workers employed by comparator companies yields similar outcomes. What is not clear, and especially so in the case of the comparator companies, is the actual jobs that people do, the work they actually carry out and how they are structured in terms of delivery of work output.

In the within matter the Court has, over a series of hearings and invitations for further submission, sought to secure from the parties clear factual detail as regards the work content and structure of the jobs of the workers who are party to the within dispute and those with whom they seek to be viewed as comparable. Notwithstanding that process however, the Court concludes that it does not possess sufficient information or evidence which sets out clearly the detail of matters which would, when taken together and in combination with other information, allow a conclusion as regards comparability. Those matters would include but would not be restricted to matters such as work structure, grading structure, duties, qualification requirements and responsibilities of the workers in the Respondent company and the comparator company.

In the circumstances the Court cannot, by reason of an absence of clear relevant detail and information, find that the workers who are party to this dispute and those with whom they seek to compare themselves, are comparable within the meaning of the Act.

Having been unable to make a finding that the workers are comparable the Court lacks jurisdiction to embark upon a consideration of the other tests which it must undertake in a matter such as the within trade dispute. The Court does however stress to the parties the significance of each leg of the tests set out in the Act and would emphasise that the Court is required to make findings on each matter as a condition precedent to the making of a Recommendation.

In the circumstances where the Court has not made a finding that the workers concerned in the within trade dispute are comparable with the workers with whom they seek to compare themselves, the Court has no jurisdiction to make a recommendation as provided for in the Act at section 5(1).

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
18 June 2018Chairman



NOTE

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