FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : PREMIER PERICLASE LTD, RHI MAGNESITA (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - 30 OPERATIVES (REPRESENTED BY UNITE THE UNION AND SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Failure to Agree a Protocol for Temporary Shutdown of the Plant
A Labour Court hearing took place on the 12 October 2020. UNION’S ARGUMENTS: 3. 1. The Trade Unions claim that the employer has failed to engage appropriately in advance of the implementation of lay-off. 2. The Trade Unions raised issues in relation to a range of matters including sick pay during lay-off, sharing of available work during lay-off, use of contractors during lay-off, compensation for loss of earnings during lay-off and pension matters. EMPLOYER'S ARGUMENTS: 4. 1. The Employer states that, at all times, it attempted to act in accordance with the terms of the 1998 Collective Agreement between the parties including as regards implementation of the lay-off which arose principally because of the short notice loss of a very significant order. 2. The Employer rejected Trade Union claims as regards the implementation of lay-off and all other claims presented and argued that arrangements as proposed for operation of the lay-off had been accepted by a majority of workers on the site. RECOMMENDATION: The Court has given very careful consideration to the written and oral submissions of the parties. The Court is conscious that the trade dispute before the Court has been the subject of industrial action for a considerable period of time. The Court is also conscious of the fact that, separately, a restructuring involving potential redundancies is under way on the site and across the international group of which the employer is a component part. It is the view of the Court that the interest of both parties is served at this time by securing a means to return to normal working as soon as possible. The Court notes in this context that the lay-off giving rise to the trade dispute concluded on 10th July 2020 and the Court has not been made aware of any potential for further lay-off in the planned future. The Court has been asked to make recommendations across a range of disputed matters. The Court has been provided with detailed submissions wherein all parties set out their positions and indeed set out extensive narrative identifying what they see as failings in industrial relations terms of another party. The Court does not find it productive, at this remove from the conclusion of the lay-off period concerned, to engage in a fault-finding exercise laying responsibility in that sense at the door of one party or another. The Court has therefore decided to respond to the submissions of the parties by setting out a recommendation in respect of each disputed matter as follows: Pensions– The Trade Unions raised concerns as regards the fact that during the four week lay-off contributions from both employer and employee ceased. The employer has confirmed that any employee wishing to make ‘catch up’ contributions could be facilitated to do so. The employer however submitted that it would not make contributions in respect of any such ‘catch up’ contributions made by any employee. The Court recommends that the parties engage to consider the extent of the concern in this area and, if necessary, agree an extension to the career contribution period permissible to each employee such that the scheme contributions of both employee and employer could be extended by four weeks at the end of the planned scheme contribution period. Lay-off procedure– the Court notes that the 1998 agreement makes provision in respect of procedures for lay-off. Specifically, the agreement provides that“lay-off shall be by job category affected, and within job categories by seniority”. The Court cannot see how the terms of the 1998 agreement make provision for CCRO’s or Charge Hands to revert to yard day working in a period of lay-off. The Court does note however the claim of the Trade Unions that CCRO’s / Charge Hands should be able to revert to the pool of yard day workers during lay-off while retaining shift-pay and should be able to share equally with those workers the yard day work available. The Court does not interpret the 1998 agreement as providing for the procedure claimed by the Trade Union. The Court recommends however that the parties accept that their collective agreement remains in place until replaced or amended by agreement of the parties. Should either party propose a change to the lay-off procedures agreed in the 1998 agreement the parties should address any such claim through the procedures set out in Clause 12 of the parties’ collective agreement. Sick pay– the Court notes the agreed provisions of the sick pay scheme as set out at Clause 10 of the 1998 agreement. The scheme clearly excludes from benefit an employee whose illness occurs during industrial action. The Court cannot, however, support a contention that an employee whose illness occurs prior to lay-off or industrial action and is in benefit in accordance with the provisions of the sick pay scheme prior to such event occurring, can, as a result of any provision of the agreed scheme, be removed from or reduced in value of benefit during the industrial action or period of lay-off. The Court recommends that the parties accept that their collective agreement remains in place until replaced or amended by agreement of the parties. The agreement should, as a consequence, be applied as written to any individual whose illness occurred and who was in benefit under the terms of the sick pay scheme prior to the recent periods of lay-off and industrial action. Should either party propose a change to the terms of the sick pay scheme as set out in the 1998 agreement, the parties should address any such claim through the procedures set out in Clause 12 of the parties’ collective agreement. Use of contractors– the Court notes that the 1998 collective agreement of the parties makes provision for the use of contractors at Clause 5 wherein it is stated “For the duration of the agreement the Company has the right to use contractors for any or all work, on or off site, without exception”. The Court also notes the commitment of the employer as set out in its submission to the Court as follows: “Management will work to provide as much work as possible for our own employees and in the event of work shortages, to remove as many contractors from site as feasible taking into account appropriate H&S requirements and specialist skills” The Court considers that the 1998 agreement taken together with the commitment of the employer as expressed to the Court represent important clarity as regards the use of contractors during a period of lay-off. The Court recommends that, in the period before commencement of lay-off should such an event arise in the future, the parties should explicitly consider jointly the planned use of contractors during the lay-off having regard to the 1998 agreement and the commitment outlined above. Role of HOS during lay-off– The Court notes the content of the 1998 collective agreement and the content of the agreement entitled “Operating Agreement between Premier Periclase and Central Controllers” also dating from 1998. The Court recommends that the parties engage at local level and through their agreed procedure as necessary in order to resolve any difference that may exist between them as regards this matter. The Court recommends that the agreed procedure should be utilised expeditiously. Compensation for loss of earnings during lay off– The Court has reviewed the content of Clause 2 of the 1998 agreement and does not recommend concession of the Trade Union claim. Conduct of industrial relations generally: It is clear to the Court from the submissions of the parties that the relationship has been affected by the current dispute. It is clear also that the parties addressed significant elements of the framework for the conduct of their relationship in 1998 and concluded a comprehensive agreement at that time designed to underpin each other’s commitment to good industrial relations. The Court recommends that the parties accept that their collective agreement remains in place until replaced or amended by agreement of the parties. The agreement should be accepted as the continuing framework governing the conduct of their relationship and in particular to dispute resolution. That agreement should be followed by both parties in all respects into the future until any alteration is agreed. As an immediate gesture to a continuing constructive relationship the Court recommends a restoration of the deduction of union subscriptions at source. If any party proposes an alteration to any element of the 1998 agreement or to any aspect of the historical basis for the relationship between company and trade unions, the parties should engage on that matter and deal with any unresolved elements through the agreed dispute resolution procedures as necessary. The Court so recommends.
NOTE Enquiries concerning this Recommendation should be addressed to Therese Hickey, Court Secretary. |
