INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001,
AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004
- AND -
AUTOMOBILE GENERAL ENGINEERING MECHANICAL OPERATIVES TRADE GROUP
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Union Application under the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.
2. The case before the Court concerns a dispute between Goode Concrete Ltd and the AGEMO Trade Group who represent 30 drivers employed by the Company.
The Company's position is that they have no employees who are members of the Union, and therefore, have no obligation to enter into discussions with the Union.
The issues in dispute are as follows:-
1. Basic hourly Rate of Pay
2. Overtime Rates
3. Inclusion of Regular Rostered Overtime in Holiday Pay
4 Health and Safety issues
5. Disciplinary and Grievance Procedures
On 27th August 2004 the Union referred the dispute to the Labour Relations Commission under the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76 of 2004). The company declined to participate in the process provided by the Code of Practice for stated reasons.
The dispute was referred to the Labour Court in accordance with Section 2(1) of the Industrial Relations Act, 2001,as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004. A Labour Court hearing took place on the 19th November, 2004.
The following is the Recommendation of the Court.
The Company contended that the Union is not in fact representative of any of its employees and that there cannot be a dispute between it and the Union. The Union say that it represents 30 drivers who are employees of the company. The Union offered to provide the Court, on a confidential basis, with details concerning the number and identity of employees of the company who have joined the Union. The Union representatives told the Court that the members did not consent to their identity being disclosed to their employer for reasons which were outlined to the Court. The Company objected to this information being received by the Court on a confidential basis and submitted that it was entitled to comment on any material placed before the Court.
The Court believes that the requirements of natural justice and fair procedure preclude it from accepting information from one party which is not available to the other party for comment. Hence the Court cannot accept information in confidence from one party in the face of an objection from the other party. The Court notes, however, that the Act does not prescribe any membership threshold which a trade union must meet before it can bring an application under section 2(1) of the Act.
In this case the Court accepts the assurances of the Union that it is representative of employees of the Company who are in dispute with their employer in connection with the issues forming the subject matter of this referral.
Compliance with Section 2(1) of the Act.
On 27th August 2004, the union referred this dispute to the Advisory Service of the Labour Relations Commission pursuant to the Enhanced Code of Practice on Voluntary Dispute Resolution, (S.I. 76 of 2004). However the Company declined the invitation of the LRC to participate in the processes of the Code of Practice.
Whilst the Court recognises that the Code provided a voluntary process, in the circumstances of this case it is particularly regrettable that the parties did not have the advantage of some level of engagement, through those procedures, before the matter came before the Court.
This dispute was referred to the Court pursuant to Section 2 (1) of the Industrial Relations (Amendment) Act 2001, as amended (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.
Approach of the Court
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 is precluded by section 5 of the Act from recommending arrangements for collective bargaining and nothing that follows should be construed as providing for such arrangements.
Terms and Conditions of Employment
The claims under investigation in this referral relate only to drivers employed by the Company and these recommendations are not intended to have any wider scope.
Having regard to the information with which it was provided the Court is satisfied that the terms and conditions of drivers employed by the Company are out of line with appropriate standards in comparable employments. Accordingly the Court makes the following recommendations:
The Court recommends that the hourly rate of pay be increased to €13 per hour.
The standard working week should be 39 hours. Normal starting time should be between 7.30 am and 8am. Normal finishing time should be between 4.30pm and 5pm. There should be a paid lunch break of one hour.
It is noted that the Company do not pay overtime. The Court recommends that the following rates should apply.
• Time plus one half after normal finishing time, Monday to Friday.
• Time plus one half for all time worked in the first four hours on Saturday and double time thereafter.
• Double time for hours worked before normal starting time
• Double time for all hours worked on Sunday.
The Court recommends that regular and rostered overtime be included in the calculation of holiday pay. The calculation should be by reference to the average weekly overtime in the time worked in the 13 weeks preceding the holiday.
Safety, Health and Welfare Requirements.
The Union made a series of claims in relation to the safety, health and welfare at work of its members. These included claims for the provision of protective clothing and for the provision of canteen facilities, including facilities for the preparation of hot meals. The Company contend that all such facilities are currently provided.
Without seeking to resolve that conflict of understanding between the parties, the Court recommends that the Company provide all such facilities including clothing and equipment as is required by law in relation to safety, health and welfare at work. For the avoidance of doubt this includes the items referred to by the Union in its submission to the Court. However, employees should be required to take reasonable care of the clothing or equipment with which they are provided and could be obliged to meet the cost of replacing clothing which is lost or damaged other than by normal ware and tear.
The Union alleged that the Company disapproves of its employees joining the Union and its members fear hostility on the part of management if their membership of the Union becomes known. The Company refute this allegation. They told that Court that they have no objection to employees joining the Union provided a majority do so. The Company representative told the Court that it would be prepared to formally advise its employees that it did not have any principled objection to Union membership amongst its employees.
The right to join a trade union is an individual right the exercise of which cannot be made dependent of the wishes of others. So as to dispel any doubt as to the Company’s position, the Court recommends that, in accordance with its undertaking to the Court, the Company should provide each of its employees with a statement in writing informing them that it fully respects their individual right to join or not to join a trade union and that in the event of exercising the right to join a union no adverse consequence will arise in their employment.
Grievance and Disciplinary Procedures.
The Company presented the Court with a copy of a new disciplinary and grievance procedure which it intends putting in place. The Company’s Solicitor told the Court that it accepted that the procedure should conform to the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000). It was submitted that the draft procedure did conform to the code.
Having examined the draft procedure submitted the Court cannot accept that it conforms to the general provisions of the Code of Practice. Whilst the disciplinary procedure does provide for representation by an employee representative (and the company accepts that this can include a trade union) the grievance procedure does not make any provision for employee representation.
Moreover, neither the disciplinary procedure nor the grievance procedure contains any provision for the utilisation of the normal industrial relations machinery of the State where matters cannot be resolved internally.
The Court recommends that 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.
Any submission that the Union wishes to make with regard to the content of the procedure 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.
The recommendations herein should be implemented within one month from the date of the date on which they are issued.
Signed on behalf of the Labour Court
9th December, 2004______________________
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.