A Worker

An Employer

Anonymised Parties

A Bus Driver

A Transport Company

Representatives

  Self-Represented

 HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00036637-001

12/06/2020

The Worker requested that the Employer engage with his Trade Union to improve its operations and service level to Union members and maintained that the Worker had the Constitutional right to end a condition of his employment that he remain a member of a Trade Union.

The Worker is employed as a Bus Driver and is a member of a Trade Union.

The Worker is not content with the service from the Trade Union and claimed the Employer should be doing more to ensure the Trade Union are operating to a higher standard of performance. The Worker gave examples that he was unhappy with the lack of meetings and elections by the Trade Union local Representatives.

The Worker sought the right to not be part of a Trade Union and that constitutionally he maintained that as a person has the right to be a member of a Trade Union they also have the right not to be part of a Trade Union.

The Worker also sought that the Employer should ensure that the Trade Unions they have partnered with are organisationally fit for purpose. The Worker also stated that if the Employer has selected a Trade Union to work with that the Employer has an obligation to ensure the Trade Union are providing a quality service to their employees. The Worker stated that if the Trade Union were not fit for purpose he should have the right to join another Trade Union and that Trade Union should have collective bargaining rights.

The Employer currently employs a substantial number of employees across the country and has an established Industrial Relations negotiations arrangement with a number of Trade Unions representative of all grades.

All drivers entering the service are required to become a member of one of two specified Trade Unions as a term and condition of employment. These Trade Unions hold collective bargaining rights for that category of Worker.

The Worker is employed since May 2013 as a Driver and S. 12 of the contract of employment states “You are required to join, and as long as you are employed by (The Company), remain a member of one of the trade unions catering for operative grades employed by the company”.

The Worker raised a complaint locally in November 2019 and was advised by the now Services Manager that his request to join another Trade Union could not be accommodated (as it would be in breach of his contract). The Worker then referred the matter on to the then Head of Employee Relations and a meeting was held on 28th February to discuss the matter. Following this, HR responded to the Worker confirming that access to another union was for him alone but that full negotiation rights for pay and terms and conditions rested only with two specific Trade Unions for Driver grade. HR also advised that they had no role in dealing with any inter-union dispute.

The Worker is employed as a Driver and it is a condition of employment that the Worker joins, and remains a member of, one of the two recognised trade unions for Drivers.

The Employer is not required to recognise another Trade Union for the purposes of collective bargaining. It was stated that this would cause significant disruption to their existing Industrial Relations structures.

The Worker can join another one of the recognised Trade Unions for operative grades (as per his contract). That is a matter, however, for him alone.  It is the Employers position that any other Union will not be recognised for collective bargaining purposes.

The Company rejects that it has any role in “managing” the quality of service from a Trade Union.

Section 3 of the Industrial Relations Act, 1946 sets out the definition of a “trade dispute” as follows” the expression trade dispute means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of employment, or with the conditions of employment, of any person”.

The Worker entered into a contract of employment with the Respondent on May 15th, 2015 and Section 12 of that contract states “You will be required to join and as long as you are employed by (The Employer) remain a member of one of the Trade Unions catering for operative grades employed by the Company”.

The Employer accepted at the Hearing that the Worker has the right to join any Trade Union that will accept him but equally he has a legally binding contractual term of employment to join and remain a member of one of two specified Trade Unions to represent the Operative category of Worker in the Employers organisation.

The Worker made the core case that as the Constitution allows for his right to join a Trade Union it should also be his constitutional right to not join a Trade Union.  This is a constitutional law issue and not a trade dispute. It is more appropriately dealt with in that forum than an Industrial Relations forum and therefore outside my jurisdiction to make a Recommendation on that aspect of the claim as it is not a trade dispute, in the traditional sense. The Worker claimed to be aware of “around 200” people in his category of employment that were not members of the two recognised Trade Unions and put this forward as an argument that he could cease to be a member of his Trade Union. The Employer was not in a position to respond to this claim at the Hearing, as it was not advised as an issue prior to the Hearing by the Worker, and at the request of the Adjudicator at the Hearing, the Employer subsequently provided details of the applicable staff numbers who were Union employees. The Employer confirmed that 96% of applicable staff of the two specified Trade Unions paid Union dues through the company payroll. They understood some or all, of the other 4% of workers, paid their Union dues through direct subscription as it was not a requirement to pay the Union dues through payroll. The number of workers paying in this manner was insignificant in the big picture and was nowhere near the 200 workers as alleged by the Worker. The Employer also stated that a Trade Union involved are currently examining the Union membership payments and are insisting on any employee who is not a member, for whatever reason, must be a member of one of the two nominated Trade Unions as per their contract of employment. Therefore, this basis for the Workers case was not substantiated by the facts.

Secondly, the Worker would like the Employer to engage with the Trade Union he is a member of to increase its “fit for purpose” as the Worker put it. The Workers main concerns seemed to be around the frequency of Trade Union meetings and lack of communication/elections etc. The Worker is bound to be a member of one of the stated Trade Unions in his contract of employment for the category of his employment. The Employer has entered into agreements with a large number of Trade Unions to govern the collective bargaining and other common interests for various classes of employees in its employment. This is legal and standard practice in Companies that have Union/Employer relationships to organise the Trade Union involvement of both the employees and Union members

Finally, the Worker raised the question of whether the Trade Union he was required to join is “fit for purpose” and that the Employer has a duty to monitor and only engage with a Trade Union that, in the Workers view, provides a quality service to him.  The Employer in this case has no role to play in this issue except for any joint Employer/Trade Union body initiatives at a general level and crucially the fitness for purpose issue is not a term of the workers employment nor is it a condition of employment in the general sense.  Also, the core issue the Worker has is with the Trade Union and he seems to be seeking a novel way of introducing the Employer to act on his behalf. Therefore, the Workers claim that his Employer engage with his Trade Union on its fitness for purpose is really a dispute between the Worker and his Trade Union and not the Worker and Employer and as such is not covered under the definition of a trade dispute by Section 3 of the Act. The Adjudicator therefore has no jurisdiction to issue a resolution on the fit for purpose claim. It also would go against any industrial relations norm for an Employer to “engage” with a Trade Union on its fitness for purpose or operational methods and I am confident if an Employer tried to do so, it’s interference would be strongly rebuffed by any Trade Union.

As to who the Employer engages with for collective bargaining for particular categories of employees is a matter solely for the Employer and Trade Unions and again is not a trade dispute under the remit of the Industrial Relations Act 1969. As an observation, if each single employee had the right to choose which Union represents them in collective bargaining this would lead to a totally disjointed and chaotic employee relations situation. It is also an issue more commonly associated with a group of workers than an individual worker. Also the purpose of the IR Acts is to promote ¨harmonious relations¨ and not to promote a ¨free for all¨ situation.  I have concluded this issue is not a trade dispute under the definition of the 1946 Act.

With regard to the issue of whether the Worker must remain a member of the current Trade Union (or the other recognised Trade Union for his category of employment) this is an agreed condition of his contract of employment and is a standard Industrial relations clause for the organisation of Employer/Trade Union relationships. The matter of constitutional law is not a matter considered as a normal trade dispute and the Worker has other avenues to consider if he wishes to pursue this issue further, but it is not an issue appropriate for Recommendation by an Adjudicator under the Industrial Relations Acts as it is a constitutional law issue and not a trade dispute.

I conclude that I have no jurisdiction to issue any resolution on the claims and do not recommend in favour of the Worker.

Trade Dispute