LCR23032

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044535 (CA-00055230-001 IR-SC-00001119).

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 26 January 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 19 December 2023 the Adjudication Officer issued the following Recommendation:

“Having considered the arguments outlined by both parties and having regard to all the circumstances I so not recommend in favour of the Worker.’’

A Labour Court hearing took place on 23 August 2024.

DECISION:

This is an appeal by a Worker of the Decision of an Adjudication Officer in respect of his claim for paid time off when in his role as shop steward of the Irish Workers Union (IWU) he is representing individual colleagues at grievance and or disciplinary meetings with management.  It is not in dispute between the parties that the Employer does not engage collectively with this Union. Nor is it disputed that the Employer has a collective agreement with other recognised Unions in the workplace which provides for a system of paid release for shop stewards when representing an individual at meetings with management. The Worker in this case is now retired since June 2023. and is claiming in respect of two and a half days he previously was not paid for.

Mr Keenan on behalf of the worker submitted that it was unfair that some workers are granted paid time off, and others are not. He accepted that no collective agreement existed between the Employer and the IWU to provide paid time off. He accepted that Code of Practise on Grievance and Disciplinary procedures SI. No 146/2000 provides for representation by a colleague or registered Trade Union which the IWU is but does not require that the representative be paid. Mr Keenan said it is inferred that a worker is entitled to pick who represents them and the representative is entitled to be paid.

Ms Ennis BL on behalf of the Employer submitted that there is no such inference. The Code is focussed on ensuring that the individual’s issue is processed using fair procedures, and one element of that is that they can have representation.   In respect of this worker, the employer facilitates the worker with time off, but are under no obligation to pay him for that time off.   In order to qualify for paid time off to act as representative for another trade union member, you have to be acting on behalf of one of the recognised Trade Unions who hold the negotiation rights for the grades. These are the Unions that can collectively bargain on behalf of a grade, group, or category of workers in the employment, and can negotiate on behalf of all workers in the grade regardless of their union membership.

It is the employer’s submission that this an attempt to force the employer to recognise the IWU in the same manner as it does other unions. The employer engages with a group of Unions who represent the majority of the Network Technicians in the employment these comprise the Group of Unions of which the IWU is not apart. Ms Ennis BL also submitted that the Worker had not processed his complaint through the internal grievance procedures, prior to submitting it to the WRC and opened some precedent cases to the Court where the Labour Court had not upheld complaints, as the person had not exhausted the internal procedures.

Mr Keenan stated that there was no legitimate basis for excluding shop stewards from the IWU from paid time off. Mr Keenan submitted that in respect of the grievance procedure the worker had lost faith in the internal procedure when a grievance he raised in 2021 was not addressed and that was why he referred his complaint directly to the WRC.

The Employer disputed this and informed the Court that the worker had used the grievance procedure in 2022 without raising any issues about it.

The Court having carefully considered the submissions both oral and written from the parties finds no basis to uphold the workers complaint.  The worker is not a member of one of the Trade Unions who have negotiated for their members paid time off in certain circumstances. He therefore does not meet the criteria for paid time off. As the Court has found the worker does not meet the criteria for paid time off as a Trade Union Representative, it does not need to consider the failure to utilise the internal procedures first. The appeal fails the decision of the Adjudication officer is varied accordingly.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
28 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.