LCR22021

FULL RECOMMENDATION CD/19/48 RECOMMENDATION NO. LCR22021 SECTION 2 (1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001 PARTIES : VANTASTIC - AND - NATIONAL BUS & RAIL UNION DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Mr Hall

SUBJECT:
1. Union Recognition and Improvements to Terms and Conditions.


BACKGROUND:

2. The dispute was referred to the Labour Court on 24 January, 2019 in accordance with Section 2(1) Industrial Relations ( Amendment) Act 2001.

A Labour Court hearing was held on 5 April, 2019.





RECOMMENDATION :

Background to the Dispute

The within dispute was referred by the NBRU (‘the Union’) to the Court pursuant to section 2 of the Industrial Relations Act 2001 (‘the 2001 Act’) on behalf of those of its members who are employed as drivers by Vantastic Limited (‘the Company’). The Union’s written submission to the Court summarises the claim as “in essence a trade dispute regarding improvements in terms and conditions of our Members and a trade dispute connected to the failure of Vantastic to recognise the Union of choice of our members”.

The claim was received by the Court on 24 January 2019. It was referred directly to the Court by the Union. No engagement had taken place between the Parties under the auspices of the Workplace Relations Commission. The Company declined the Commission’s invitation to engage with the Union in relation to the dispute. The Court heard the matter on 5 April 2019 in Dublin.

The Purpose of the 2001 Act

The intention of the legislature in enacting the 2001 Act is concisely and aptly summarised by Anthony Kerr SC at page 269 of The Trade Union and Industrial Relations Acts (Fifth Edition, Round Hall, 2015) as follows:

• The purpose of this Act, as amended by the Industrial Relations (Miscellaneous Provisions) Act 2004 and the Industrial Relations (Amendment) Act 2015, is to give new dispute-settling powers to the Labour Court in cases where collective bargaining arrangements are not in place in the firm in question. It is not about trade union recognition, however.”

Conditions Precedent to the Court’s Jurisdiction under the 2001 Act

(a) Section 2(1)(a) of the 2001 Act provides:

• “2.—(1) Notwithstanding anything contained in the Industrial Relations Acts, 1946
  to 1990, at the request of a trade union, the Court may, subject to this Act,
  investigate a trade dispute where the Court is satisfied that—
  • (a) it is not the practice of the employer to engage in collective bargaining
    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 the dispute
    Court precluded from Recommending Trade Union Recognition pursuant to the 2001 Act

It is clear from the Union’s written submission to the Court that it accepts that it is in fact the Company’s practice to engage in collective bargaining “in respect of the grade, group or category ow workers who are party to the trade dispute”. This position was also verbally confirmed to the Court by Mr Thomas O’Connor, the Union official who attended the hearing.

It follows, on this point alone, that the Court has no jurisdiction to investigate the within dispute under the 2001 Act.

(b) Section 2(3) of the 2001 Act mandates that the Court shall decline to conduct an investigation under section 2(1) “where it is satisfied that the number of workers who are party to the trade dispute concerned is such as to be insignificant having regard to the total number of workers employed by the employer concerned in the grade, group or category to which the trade dispute concerned refers.” Logically, it would not be possible for the Court to satisfy itself as to whether the number of workers who are party to the dispute is insignificant having regard to the total number of workers employed by the respondent Company in the relevant grade etc unless it were first furnished with authoritative information about the numbers of workers respectively party to the dispute and employed in the relevant grade etc To facilitate the Court in this regard, the legislature has included section 2A in the 2001 Act as amended.

Section 2A(1) provides:

• “2A. (1) For the purposes of subsection (3) of section 2 in respect of establishing the
  number of workers who are party to the trade dispute, a statutory declaration made
  by the chief officer of the trade union which made the request under subsection (1)
  of section 2, specifying—
  • (a) the number of the members of that trade union who are in the employment
    of the employer concerned in the grade, group or category to which the trade
    dispute refers and who are party to the trade dispute, and
    (b) the period of membership of such members in that trade union,
    shall be admissible in evidence without further proof, unless the contrary is shown,
    of such numbers and such period.

The Union did not furnish the Court with a statutory declaration within the meaning of section 2A(1). Neither did it furnish the Court with the required information in any other format that would permit the Court to discharge its obligation under section 2(3). Had the Court’s lack of jurisdiction in this matter not already been established having regard to section 2(1)(a) of the 2001 Act, the Union’s oversight in relation to section 2(3) and 2A(1), in itself, would have placed a considerable obstacle in the way of the Court’s ability to investigate any dispute under the Act.

The Court is not permitted to recommend Collective Bargaining pursuant to the 2001 Act
Section 5(2) of the 2001 Act provides:

• “(2) A recommendation under subsection (1) shall not provide for arrangements for
  collective bargaining.”

‘Collective bargaining’ for the purposes of the 2001 Act is defined in section 1A as comprising “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.”

As mentioned earlier, a stated objective of the Union in referring the within dispute to the Court is to achieve collective bargaining rights in respect of its Members in the Company’s employment – notwithstanding the long-standing arrangements in place whereby another Trade Union has sole and exclusive recognition rights within the Company. The Court is expressly precluded from recommending “arrangements for collective bargaining” by section 5(2) of the 2001 Act. For this reason, also, the Union’s application must inevitably fail.

Discussion and Conclusion
For the reasons already stated above, the Court’s jurisdiction is not engaged under the 2001 Act with regard to the within dispute. This dispute is a thinly-disguised claim for trade union recognition. There are other well-established and appropriate means of referring such a dispute to the Court. To attempt to bring a dispute of this nature before the Court under the 2001 Act is misconceived and an abuse of process. Having regard to the foregoing, the Court declines to consider the merits of the dispute.

The Court so determines.



Signed on behalf of the Labour Court



Alan Haugh
MK ______________________
14 June 2019 Deputy Chairman



NOTE

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