LCR22174

RECOMMENDATION:

This matter comes before the Court as a request by SIPTU (the union) for an investigation into a dispute between it and Scruttons NI LTD (the employer) in connection with the terms and conditions of employment of members employed by the employer. The application was made pursuant to section 2 of the Industrial Relations (Amendment) Act, 2001 as amended (the Act)

The dispute was considered by the Workplace Relations Commission under the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76 of 2004) (the Code). In a report given to the Court in accordance with the Act at Section 2(b)(ii) the Commission informed the Court that no further effort on its part will advance the resolution of the issues in dispute.

Preliminary Issue.

By way of a preliminary issue counsel for the employer submitted that the Court lacked jurisdiction to investigate the dispute as the conditions specified at Section 2 of the Act have not been met. The Court decided to exercise its discretion under section 3 of the Act to determine the matters raised by the employer preliminary to the Court’s investigation of the dispute between the parties.

Summary position of the employer on preliminary matters

The employer submitted that

• 
  •it is the practice of management to engage in collective bargaining with an excepted body within the meaning of the Act,

  •The employees did not co-operate sufficiently before the Workplace Relations Commission and thus frustrated the process before the Commission, and accordingly the Court cannot be satisfied that the Trade Union or the employees as the case may be, have not acted in a manner which, in the opinion of the Court, has frustrated the employer in observing a provision of the Code, and

  •Internal dispute resolution procedures have not been availed of, either by way of meaningful negotiation or the raising of a grievance.

The employer submitted that it was its practice to negotiate with a Day Committee and a Night Committee of employees and that this negotiation constitutes collective bargaining within the meaning of the Act.

The employer submitted that the Committees were entirely independent of the employer and that the employer had no involvement in their operations. Both Committees together constituted one excepted body within the meaning of the Act. The employer was unable to clarify if any employees outside the representatives who meet the employer are actually members of either committee or what arrangements exist to allocate membership of either committee to an employee.

The employer submitted that the employees did not engage meaningfully with the process overseen by the Workplace Relations Commission in accordance with the provisions of the Code and consequently the Commission could not correctly assert that no further efforts on its part could advance the resolution of the Trade dispute. The employer submitted that the Court is obliged by the Act at Section 2(1)(b)(ii) to satisfy itself that the Commission’s statutory assertion that, in the opinion of the Commission, no further efforts on its part could advance the resolution of the trade dispute is valid and correct.

The employer submitted that the employees had not engaged the internal grievance procedure in place in the employment and consequently, having regard to the Act at Section 2, the Court does not have jurisdiction to investigate the dispute. The employer submitted a copy of the internal grievance procedure of the employment. That extract referred to an obligation on the employee to raise any grievance verbally or in writing with the employee’s immediate supervisor and if not resolved at that stage it should be referred to their two respective managers. If unresolved at that stage the grievance it will be referred jointly to a senior company representative. If unresolved at that stage the matter can be referred to a third party.

Evidence on behalf of the employer was given at the hearing of the Court by Ms Louise Simpson who is a Human Resources Consultant and who is not an employee of the employer.

Ms Simpson said that a range of matters were agreed between the employer and the Day Committee and the Night Committee. The representation was three employees in both cases and two members of one Committee are supervisors.

Ms Simpson said that Scruttons NI Ltd took over this business in 2010. She said that in 2013 a number of queries arose from the employees and the employer suggested that a committee of employees should come forward. She said that a Day Committee was formed in 2013 and a Night Committee in 2015. She said that before the formation of these committees the methodology of engagement was by individuals raising grievances and that the employer, by suggesting the formation of a committee, was seeking to achieve efficiency.

She said that no elections were held to form the Committees and the employer did not get involved in the operations of the Day and Night Committees. The frequency of meetings between the employer and the Committees varied, mostly at the behest of employees. The only involvement of a financial nature of the employer was to allow meetings to take place during paid working time and the occasional rental of an external meeting room.

She said a range of matters were resolved in meetings with the Committee. Wherever individuals rejected a proposed change following the achievement of a common position between the employer and the Committees it has been the practice of the employer to engage with employees individually.

She said that no ‘agreement’ reached between the employer and either committee was ever reduced to writing and she clarified that the two Committees did not meet together. She said that the employer did not have any knowledge of the decision making mechanisms of the Day and Night Committees or of the nature of the involvement of employees in the making of decisions on matters emerging from meetings between the employer and the Committees.

Summary position of the Trade Union

The union submitted that its members had no knowledge of the operation of the Day and Night Committees and were never aware of any elections of representatives taking place. Similarly, the Trade Union submitted that the Day and Night Committees did not negotiate on behalf of employees and did not consult with employees as regards proposed agreements with the employer.

The Trade Union submitted that no excepted body within the meaning of the Act is or was in existence within the employment. No employees were members of an excepted body in the employment.

Relevant law

The Act at Section 1A provides as follows:

Collective bargaining

• 1A. For the purposes of this Act, ‘ collective bargaining ’ comprises voluntary engagements or negotiations between any employer or employers ’ organisation on the one hand and a trade union of workers or excepted body to which this Act applies on the other, with the object of reaching agreement regarding working conditions or terms of employment, or non-employment, of workers.

• Excepted body to which this Act applies

  1B. For the purposes of this Act, ‘ excepted body to which this Act applies ’ means a body that is independent and not under the domination and control of an employer or trade union of employers, all the members of which body are employed by the same employer and which carries on engagements or negotiations with the object of reaching agreement regarding the wages or other conditions of employment of its own members (but of no other employees).

• 2.-(1) Notwithstanding anything contained in the Industrial Relations Acts, 1946 to 1990, at the request of a trade union or excepted body, the Court may investigate a trade dispute where the Court is satisfied that –

  (a) it is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve this dispute,

  (b) either –

  (i) the employer has failed to observe-

  • • (I) a provision of the Code of Practice on Voluntary Dispute Resolution under Section 42 of the Industrial Relations Act 1990 specifying the period of time for the doing of any thing (or such a provision of any code of practice amending or replacing that code), or
    (II) any agreement by the parties extending that period of time,
  or
  • (ii) the dispute having been referred to the Commission for resolution in accordance with the provisions of such code, no further efforts on the part of the Commission will, in the opinion of the Commission, advance the resolution of the dispute and the Court has received a report from the Commission to that effect,]
  (c) the trade union or the excepted body or the employees, as the case may be, have not acted in a manner which, in the opinion of the Court, has frustrated the employer in observing a provision of such code of practice, and

  (d) the trade union or the excepted body or the employees, as the case may be, have not had recourse to industrial action after the dispute in question was referred to the Commission in accordance with the provisions of such code of practice.

  (2) In the course of an investigation under subsection (1) the Court shall have regard to the entirety of labour relations practices in the employment concerned including labour relations practices engaged in by the employer or an associated employer in another employment including an employment outside the State.

  (10) For the purposes of subsection (1) (a), where an employer asserts that it is the practice of the employer to engage in collective bargaining with an excepted body to which this Act applies, when determining if the excepted body concerned is an excepted body to which this Act applies in respect of the grade, group or category of worker concerned, the Court shall have regard to the establishment, functioning and administration of that excepted body and shall, for such purposes, take into account —

  (a) the manner of the election of employees to the excepted body concerned,

  (b) the frequency of elections of employees referred to in paragraph (a),

  • (c) any financing or resourcing of the excepted body concerned that exceeds minimum logistical support provided to it by or on behalf of the employer, and

    (d) the length of time the excepted body concerned has been in existence and any prior collective bargaining between the employer and that excepted body.

  (11) Where an employer asserts to the Court that it is the practice of the employer to engage in collective bargaining with an excepted body to which this Act applies in respect of the grade, group or category of worker concerned, the employer shall satisfy the Court that it is the practice of that employer to engage in collective bargaining with the excepted body concerned in respect of the grade, group or category of worker concerned.

Discussion and conclusions

The employer has submitted three grounds for asserting that the Court does not have jurisdiction to investigate the within trade dispute. The Court has given consideration to each ground separately.

Ground 1 – That it is the practice of the employer to engage in collective bargaining with an excepted body to which the Act applies.

By operation of the law, where an employer asserts that it engages in collective bargaining with an excepted body the Court must have regard to the establishment, functioning and administration of that excepted body. The act specifically requires the Court to take into account

(a) the manner of the election of employees to the excepted body concerned,

(b) the frequency of elections of employees referred to in paragraph (a),

• (c) any financing or resourcing of the excepted body concerned that exceeds minimum logistical support provided to it by or on behalf of the employer, and

  (d) the length of time the excepted body concerned has been in existence and any prior collective bargaining between the employer and that excepted body.

The law, by virtue of section 2(11) of the Act, places upon the employer the burden of satisfying the Court that it is the practice of the employer to engage in collective bargaining with an excepted body.

The employer in the within matter has been unable to provide the Court with any detail of the manner of election of employees to the excepted body concerned, the frequency of elections, if any, of employees to the body or whether the body had any members such that the body could carry on engagements or negotiations with the object of reaching agreement regarding the wages or other conditions of employment of its own members (but of no other employees).

The Court has been advised that the employer provides no financial support to the Day or Night Committees and has been advised that the first committee came into being in 2013 and the second in 2015.

The employer has been unable to place detail as regards significant aspects of the establishment, functioning and administration of the Day and Night Committees before the Court and has been unable to establish that the committees have in fact any members beyond the persons who attend meetings with the employer. The employer has been unable to establish for the Court any detail as regards the decision making processes of the Day and Night Committees or the involvement of employees in any such decision making.

The Court concludes that the employer has failed to discharge the burden placed upon it to satisfy the Court that it is the practice of the employer to engage in collective bargaining with an excepted body in respect of the grade, group or category of worker concerned in the within trade dispute. The Court is unable to find that the Committees together constitute an excepted body within the meaning of the Act.

The Court concludes that it is not the practice of the employer to engage in collective bargaining with an excepted body to which this Act applies.

Ground 2 - The employees did not co-operate sufficiently before the Workplace Relations Commission and thus frustrated the process before the Commission, and accordingly has frustrated the employer in observing a provision of the Code.

The employer contends that the Union and employees had not engaged meaningfully at the process overseen by the Workplace Relations Commission in accordance with the provisions of the Code. The Court understands the employer’s submission to amount to a contention that the Union and employees did not engage meaningfully in the process and did not respond meaningfully to proposals put forward by the employer and that this approach to the process frustrated the employer in observing a provision of the Code. In effect the employer contends that the stance adopted by the Union in processing its claims at the Commission was so unreasonable as to frustrate the employer in seeking to address those claims.

The employer submits that, having regard to the Act at Section 2(1)(c), the Court cannot, in light of events at the Commission process, have jurisdiction to investigate the within trade dispute. The employer further submits that the Court, having regard to the Act at Section 2(b)(ii) cannot be satisfied that, in the opinion of the Workplace Relations Commission, no further efforts on its part can advance the resolution of the matters in dispute.

The Court is satisfied that Section 2(1)(c) of the Act does not contemplate as conduct which frustrates an employer in seeking to comply with the provisions of the Code, the negotiating stance taken by employees or the Trae Union in engagements under the Code. The Court therefore cannot find that the Trade Union, by virtue of its approach to engagements at the Workplace Relations Commission, frustrated the employer in observing a provision of the Code.

The employer also submitted that the Court cannot be satisfied as required by the Act at Section 2(1)(b)(ii) that

• “the dispute having been referred to the Commission for resolution in accordance with the provisions of such code, no further efforts on the part of the Commission will, in the opinion of the Commission, advance the resolution of the dispute and the Court has received a report from the Commission to that effect”.

The Court notes the employer’s submission but also notes that it is the Commission’s opinion which the Act requires the Court to concern itself with and not the opinion of either party to the trade dispute. The Court therefore is satisfied that the opinion of the Commission has been clearly outlined by the Commission to the Court and consequently the requirements of the Act at Section 2(b)(ii) have been met.

Ground 3 - Internal dispute resolution procedures have not been availed of by the Trade Union or employees, ether by way of meaningful negotiation or the raising of a grievance.

The employer submitted that the internal dispute resolution procedures normally used by the parties concerned have not been engaged with by the trade union or the employees and consequently the Court could not be satisfied, as required by the Act at Section 2(1)(a), that those procedures had failed to resolve the issues in dispute.

The employer submitted detail of the grievance procedure in place in the employment. That procedure is clearly intended to set out a procedure to be followed by individual employees where an individual grievance arises.

The Court sought to establish practical detail as to how the procedure could be utilised to process a collective issue and the employer was unable to set out how the procedure could be used to address any matter other than an individual grievance.

The employer, when questioned, could not provide the Court with any example of an instance where the grievance procedure submitted to the Court was used to process any matter other than an individual grievance.

In all of the circumstances, the Court concludes that no internal dispute resolution procedure is in place in the employment which could be utilised to resolve a trade dispute which is collective in nature. The Court is also satisfied that no such procedure is normally used by the parties to resolve trade disputes which are collective in nature.

The Court therefore finds that this ground put forward by the employer cannot be found to deprive the Court of jurisdiction to investigate the within trade dispute.

Decision of the Court

The Court determines that, having regard to the Act at Section 2, the Court has jurisdiction to investigate the within trade dispute. The Court will now make arrangements to hear the parties on the substantive matters in dispute.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
MK______________________
6 January 2020Chairman



NOTE

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