INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001
ASHFORD CASTLE LIMITED
(REPRESENTED BY ARTHUR COX, SOLICITORS)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Preliminary hearing in relation to Union application under the Industrial Relations (Amendment) Act, 2001.
2. The issue before the Court relates to the Union's application under the Industrial Relations (Amendment) Act, 2001 to have its members outstanding pay and conditions and a review of internal grievances procedures resolved through the arrangements provided for under the Act. The Union claims that the Company failed to resolve the issues internally. Management refused to meet with the Union to discuss the issues claiming that there is already in existence a Staff Forum for the negotiation of pay and other conditions of employment with employee representatives. The Company claims that it has a separate grievance procedure and that both procedures have been availed of by employees/employee representatives. The Union sought to refer the issues to the Labour Relations Commission under the Code of Practice on Voluntary Dispute Resolution (S.I. No. 145 of 2000). Management declined an invitation to engage under the Voluntary Code. On the 7th July, 2003 the Union made an application to the Labour Court under the Industrial Relations (Amendment) Act, 2001 for an investigation of the dispute. A preliminary Court hearing was held in Galway, on the 22nd October, 2003 to determine if the requirements specified in Section 2 of the Act have been met.
Issues for Consideration.
The sole issue for consideration in this preliminary investigation is whether the requirements of section 2(1) have been met so as to afford the Court jurisdiction to embark upon an investigation of the dispute which forms the subject matter of this application
Section 2(1) of the Act provides as follows:
- “Notwithstanding anything contained in the Industrial Relations Acts 1946-1990, at the request of a trade union or excepted body, the Court may investigate a trade dispute where the Court is satisfied that…”
Is it the Practice of the Employer to engage in Collective Bargaining?
Section 2(1)(a) provides two requirements as follows:
- “It is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute”
First Limb of Section 2(1)(a)
A central question which arises for consideration is the meaning of the term “Collective Bargaining Negotiations” as it appears in the subsection. The expression is not defined in the legislation nor is it defined in any other Irish industrial relations statute of which the Court is aware. It is not a legal term of art but it is a commonly used term in the conduct of industrial relations. In the absence of any statutory definition of the term the Court must assign to the expression the meaning which it would normally bear in an industrial relations context.
Collective bargaining comprehends more than mere negotiation or consultation on individual employment related issues including the processing of individual grievances in relation to pay or conditions of employment. In the industrial relations context in which the term is commonly used it connotes a process by which employers or their representatives negotiate with representatives of a group or body of workers for the purpose of concluding a collective agreement fixing the pay and other conditions of employment applicable to the group or collective of workers on whose behalf the negotiations are conducted.
Normally the process is characterised by the involvement of a trade union representing workers but it may also be conducted by a staff association which is an excepted body within the meaning of the Trade Union Act 1941, as amended. However, an essential characteristic of collective bargaining, properly so called, is that it is conducted between parties of equal standing who are independent in the sense that one is not controlled by the other.
Support for this approach to the construction of section 2(1)(a) can be obtained from the report of the High Level Group on Trade Union Recognition and the Right to Bargain established under the Partnership 2000 Agreement. This group, comprising representatives of IBEC, ICTU, the development agencies and Government, was established to consider proposals made by ICTU in relation to trade union recognition and the determination of pay and conditions of employment in non-unionised employments.
In its report, published in 1999, the High Level Group endorsed the essentially voluntarist nature of the Irish industrial relations system. They nonetheless recognised the need for new measures to afford additional support to employees where negotiating arrangements are not in place. The measures recommended by the group, from which the Act is derived, were intended to apply only to the non-unionised sector whilst leaving unaffected established voluntary systems traditionally followed in unionised employments.
At paragraph 1.3 of its report the High Level Group stated as follows:
- “The High Level Group are agreed that where negotiating arrangements are in place the most effective means of resolving differences which arise between employers and trade unions representing employees is by voluntary collective bargaining".
It appears clear to the Court that the first limb of section 2(1)(a) was intended to give effect to this paragraph by excluding from the scope of the legislation employments in which it is the practice of the employer to engage incollective bargaining negotiations. This implicitly recognised that collective bargaining is synonymous with the approach to the determination of pay and conditions of employment typically found in unionised employments, but not the various internal systems of communication and employee consultation typically found in the non-unionised sector.
The Employee Forum
In the instant case it appears that the employee forum was essentially a consultative body. This is apparent from the document entitled “Ashford Castle Staff Forum Guiding Principles”.At paragraph 4 of this document the object of the forum is described as follows:
- “ At meetings between Ashford Castle Management and the Staff Forum, the Staff Forum will be consulted and will make representations on behalf of Ashford Castle employees in relation to the following matters.”
The provision goes on to provide the range of issues on which the forum may be consulted or make representations.
It is clear to the Court that the employee forum is not an independent body representative of workers. It was established by the employer and the employer determined the parameters within which it could operate. It is also clear to the Court that the process in which this body engaged had none of the essential characteristics of collective bargaining negotiations as that term should be understood.
There is one further point of significance. Section 2(1)(a) contemplates a situation in which it is not thepracticeof the employer to engage in collective bargaining negotiations. The use of the wordpracticesuggests something which actually happens with regularity. It can only be the practice of an employer to negotiate where there is another party who is willing to negotiate with that employer and with whom that employer is in turn willing to negotiate. In the instant case the employees are unwilling to negotiate with the employer unless they are represented by SIPTU and the employer is plainly unwilling to negotiate with that Union. In these circumstances it is patently not the practice of the employer to engage in any form of negotiations.
Second Limb of Section 2(1)(a)
The second limb of section 2(1)(a) requires the Court to be satisfied that internal procedures normally availed of by the parties concerned have failed to resolve the dispute. At first glance this seems to be in line with the normal requirement that parties would first have recourse to any agreed or established local arrangements before referring their dispute to third party adjudication. However what is obligated by the subsection is recourse to a procedure, if any, normally availed of bythe parties concernedand the intended meaning of that expression is by no means clear.
Counsel for the employer submitted that in the context in which the term is used it must refer to the employer and its employees. Hence, it was submitted, the employer's staff forum constitutes a procedure normally used by the parties concerned and that the issues in dispute should have been processed through that forum. There is, however, some difficulty with this interpretation when the statute is considered as a whole.
The wordpartiesis used in several sections of the statute in a context which strongly suggests that it refers to the parties to the proceedings before the Court, that is to say the applicant trade union (or excepted body) and the respondent employer. As a matter of statutory construction the expression must be given the same meaning throughout the statute unless an alternative meaning is clearly indicated. However, for the reasons that follow the Court finds it unnecessary to try and resolve that difficulty in order to reach a decision in this case.
Regardless of who are to be considered as the parties, the procedure must be one which isnormallyused to resolve disputes in the employment concerned. The use of the term “normally” connotes a procedure which is routinely and consistently resorted to and has become established over time as the normal mode of dispute resolution. On the facts of the instant case the staff forum was newly instigated after the Union became involved and only met on four occasions. As a matter of common sense it could not be regarded as something normally relied upon to resolve disputes.
Further, the restriction concerned is not operative where the internal procedure has failed to resolve the dispute. Whilst the full range of issues in dispute have not been opened to the Court in this preliminary application, it is apparent that they were not resolved by the internal procedure. This was expressly acknowledged by the respondent’s General Manager Mr Rochford in his letter of 6th September 2002 to the LRC in which he requested a conciliation conference in the dispute. It is also apparent from the letter to management dated 5th September 2002 and signed by the members of the staff forum that a central demand of staff was for union representation in their dealings with the employer. This aspect of the claim was patently never addressed by management let alone resolved.
Failure to Observe a Provision of the Code of Practice.
The third condition precedent to a Court investigation is set out at section 2(1)(b) of the Act which provides:
- “[T]he employer has failed to observe a provision of the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code), or has failed to observe such a provision in good faith”.
It is contended on behalf of the employer that this provision should be read as applying only where it can be shown that the employer’s refusal to observe a provision in a code was made in bad faith. The Court cannot accept that the language of this provision could attract such a meaning. The sentence is clearly disjunctive and deals with two alternative situations. It applies where an employer refuses to observe the code for whatever reason or where the employer agrees to participate in the process but fails to do so in good faith.
In this case the employer was invited to participate in the procedures of the Code of Practice by letter from the LRC dated 23rd June 2003. They replied by letter dated 2nd July 2003 declining the invitation.
The Court is satisfied that the condition at section 2(1)(b) applies in this case.
Has the Applicant Frustrated the Employer in Observing The Code of Practice.
Section 2(1)(c) provides the fourth condition precedent as follows:
- [T]he trade union or the excepted body or the employees, as the case may be, have not acted in a manner which, in the opinion of the Court, frustrated the employer in observing a provision of such code of practice,…”.
This provision relates to situations in which the employer is willing to engage with the applicant through the procedures of the code of practice but the conduct of the applicant or its members prevented the employer from so acting.
Counsel for the employer submitted that the applicant and a minority of employees sought to frustrate the employer in resolving what ever disputes exist through its own internal procedures by making unreasonable demands contrary to PPF and in seeking recognition of SIPTU as the sole representative of employees. The Court cannot accept that submission. The statutory provision is not about whether or not the parties acted reasonably in their dealings with each other. It is about whether or not the employer was frustrated in observing the Code of Practice.
The employer declined the invitation of the LRC to participate in the procedures of the Code of Practice by letter dated 2nd July 2003 and gave the reasons for their decision. The conduct of the union was not cited as a reason for declining the invitation. It appears from the submissions that the matters referred to by the employer relate to issues raised by the union at a conciliation conference held in October 2002. They could hardly be relied upon as frustrating the employer in observing the Code nine months later
It appears clear that the employer was never willing to participate in the procedures of the Code of Practice. In these circumstances the Court does not accept that the Union or its members acted in a manner which frustrated the employer in observing a provision of the Code of Practice.
Did the Applicant Engage in Industrial Action after the dispute was referred to the Commission under the Code of Practice.
Initially it was submitted by the respondent that the Union had engaged in industrial action after the dispute was referred to the Commission under the Code of Practice. This point was not pursued by counsel.
For the reasons set out herein the Court is satisfied that each of the requirements specified at section 2(1) of the Act have been met and that it is entitled to investigate the dispute referred by SIPTU accordingly.
Signed on behalf of the Labour Court
19th November, 2003______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.