INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001
BANTRY BAY SEAFOODS
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Union application under The Industrial Relations (Amendment) Act, 2001.
2. The Company was established in 1991 to cultivate, harvest and process Irish rope mussels. It currently employs ninety five workers.
The dispute before the Court concerns a claim by the Union that the Company refuses to meet with the Union to formally agree a Contract of Employment for its members. The Union states that a number of workers were approached by Management and requested to resign from the Union.
The Company argues that the vast majority of workers wish to continue to deal directly with Management and do not wish to be represented by a Trade Union. All workers have been given statements outlining their terms and conditions of employment.
The dispute was referred to the Labour Court in accordance with Section 2 of the Industrial Relations (Amendment) Act, 2001. A Labour Court hearing took place in Cork on the 7th of August, 2002.
This dispute was referred to the Court pursuant to Section 2 (1) of the Industrial Relations (Amendment) Act 2001 (the Act). The Court is satisfied that the conditions specified at Section 2(1)(a) to 2(1)(d) of the Act are fulfilled in this case and that the dispute is properly before the Court for investigation and recommendation.
The Court acknowledges that the procedures set out in the Code of Practice on Voluntary Dispute Resolution are, by definition, non-binding on parties. However, in the circumstances of this case, the Court finds it particularly regrettable that the employer declined an invitation from the LRC to process the dispute through those procedures.
At the commencement of the hearing, the Union presented a supplemental submission in which it clarified that it was not claiming the introduction of arrangements for collective bargaining with the employer. Whilst correctly acknowledging that the Court cannot make such recommendation within the statutory provisions under which this case was brought, the Union submitted that there is no restriction on the competence of the Court to address claims for individual representation and consultation.
On behalf of the employer it was argued that the substance of the Union’s claim is for trade union recognition and that the Act was not intended for that purpose. The employer further contended that there is no dispute between it and its employees which can be investigated by the Court.
Section 5(2) of the Act provides that a recommendation made by the Court shall not provide for arrangements for collective bargaining. Subject only to that restriction, the Court is required to give its opinion on the matter under investigation and, where appropriate, its view as to the action which should be taken having regard to the terms and conditions of employment, and to the dispute resolution and disciplinary procedures, in the employment concerned.
The Court notes that the Union represents approximately 30 production employees out of a total of 76 in that category. They thus represent a significant proportion of that group. The Court is fully satisfied that the issues raised by the Union in its submission to the Court, on behalf of its members, constitute the subject matter of a trade dispute which is properly before the Court for investigation.
The Court has taken careful account of the submissions of the parties in their written and oral presentations. It has also had regard to the entirety of labour relations practices engaged in by the employer, as they were outlined to the Court in the course of the investigation. The Court has also taken account of relevant Codes of Practice made pursuant to Section 42 of the Industrial Relations Act 1990, as it is required to do by Section 42(4) of that Act.
It is noted that the Company employs 95 persons in total. There are no internal systems for consultation with, or involvement by, employees in matters affecting their employment or for resolving disputes. Whilst the Company was established in 1991, it has only recently, following the intervention of the union, issued employees with particulars of their terms and conditions of employment.
The following are the recommendations of the Court:
The Union alleged that a number of its members have been subjected to harassment/intimidation by management in consequence of having joined the Union. The employer categorically refuted the Union’s contention and asserted that certain employees were harassed/intimidated by colleagues into joining the Union. The employer does, however, accept that management prepared a standard letter of resignation from the Union which was furnished to employees for their signature. This, they say, was at the request of the employees concerned.
Workers have a fundamental individual right to join or not to join a trade union. That right should be exercisable freely and without undue influence from any source. The employer told the Court that it is their policy to respect the right of individuals to join a union, and that this had been conveyed to its employees at a general meeting. Nonetheless, in the Court’s view, the employers actions in preparing and distributing letters of resignation could only be interpreted as applying pressure on employees to disassociate from the Union and was not consistent with the employer’s stated neutral stance on the question of union membership.
For the purpose of dispelling any impression to the contrary which may have been created, the employer should now provide each employee with a written statement to the effect that it is Company policy to respect the right of each employee to join a trade union if they so wish. The statement should further point out that no employee will suffer any disadvantage in their employment in consequence of exercising that right.
Disciplinary and Grievance Procedures.
The employer should put in place a disciplinary and grievance procedure which conforms to the general provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000). Consistent with the code, the Company procedure should provide for trade union representation in processing individual grievances and disciplinary matters, where an employee wishes to avail of such representation. The procedure should also provide for the full utilisation of the normal dispute resolution machinery of the State, including the reference of disputes to conciliation, the Rights Commissioner service and the Court, as appropriate.
This procedure should be put in place within one month from the date of this recommendation. Any submission that the Union wishes to make with regard to its content should be taken into consideration. If there is any dispute in relation to the compatibility of the proposed procedures with the Code of Practice, the question may be processed under Section 43 of the Industrial Relations Act 1990.
Contracts of Employment.
The Court cannot and does not recommend that the parties engage in collective bargaining in relation to terms and conditions of employment, and nothing contained in this recommendation should be construed as providing for collective bargaining.
It is noted that employees have now been furnished with a statement of the terms and conditions of their contracts of employment. Any dispute or issue in relations to those conditions should be processed individually through the grievance procedure recommended above. As previously recommended, any employee wishing to avail of trade union representation in this process should be afforded that facility in an individual capacity.
Signed on behalf of the Labour Court
26th August, 2002______________________
Enquiries concerning this Recommendation should be addressed to Gerardine Buckley, Court Secretary.