INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001,
AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004
CLEARSTREAM TECHNOLOGIES LTD
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr McGee
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Union application under the Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.
2. Clearstream Technologies is based in Enniscorthy, Co. Wexford. The Company designs, manufactures and sells medical devices for use in cardiovascular interventions. The products are sold on a worldwide basis. The Company was originally formed in 1996 as AngioDynamics Ltd, a subsidiary of a USA company. In July 2000 the Management team purchased the Company through MBO with the assistance of Venture Capital funding. The Company is now majority owned by the Management group.
The dispute concerns the decision by a large number of employees to apply for membership of SITPU in March 2003. The Union sought to open discussions with the Company, the Company declined. The matter was referred to the Labour Relations Commission (LRC) seeking assistance of the Advisory Service in April, 2004. The Company refused to engage in discussions.
The issues before the Court are the following:
- The establishment of pay rates in accordance with industry norms and individual representation where there are disputes;
- Establishment of shift premia, conditions of application same;
- Establishment of Health & Safety Welfare Committee and criteria and procedure for same;
- Sick Pay Scheme;
- Review of bonus scheme;
- Introduction of service pay scheme;
- Procedures for dealing with Bully & Harassment, including representation.
As no resolution could be found, the Union referred the issue to the Labour Court for an investigation of the dispute under the Industrial Relations (Amendment ) Act, 2001. A Labour Court hearing took place on the 23rd of June, 2004.
3.1 The Company is a major player in a high profit medical manufacturing industry directly involved in the manufacturer of items for the medical sector.
2. This is a very specialised sector where in general conditions of employment are very good, reflecting the profitable nature of this industry.
3. The workers in this Company are paid just above the minimum wage, have no sick pay, bonus or other norms which are well established in this area.
4. The Union have sought to deal with the Company in an orderly way by direct negotiations to have an amicable and equitable remuneration package introduced by consultation and agreement. This option was refused by the Company.
5. It is obvious that this Company is totally out of line with not only material issues but more importantly the past decade of National Partnership.
4.1 The Background of the Company is one of commercial and financial crisis driven by market conditions. The Management have responded to these circumstances by addressing the technical commercial and financial issues head-on, while ensuring that jobs are retained and that employees are maintained at the best possible level in the circumstances.
2 The Company has a history of good employee relations and a positive and progressive approach to employee conditions.
3. The Company has continuously sought to communicate clearly and directly with its employees and to keep them well appraised of the Company's circumstances in an open and honest manner.
4. The Company understands the concerns of employees in the current climate, particularly those of job security which is a priority.
5. The Company believes that the best interest of both Company and employees is best served internally by Management, which has historically demonstrated its proactive approach to establishing competitive conditions and benefits and is absolutely committed to continuing this approach if and when funds and trading conditions allow.
6. Any changes to the Company's operating structure runs the risk of undermining its ability to secure the long term funding necessary to underpin the quality jobs in this employment black spot.
This matter has come before the Court pursuant to the Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004 following a refusal by the Company to participate in a joint process at the Labour Relations Commission under the Code of Practice on Voluntary Dispute Resolution (S.I. No 145 of 2000.) The Court is satisfied that the conditions specified at Section 2(1)(a) to 2(1)(d) of the 2001 Act are fulfilled and that the case 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 the opportunity to process the dispute through those procedures.
It appears to the Court that the purpose of the Industrial Relations (Amendment) Act, 2001 is to provide a measure of protection to workers whose pay and conditions of employment cannot be determined by collective bargaining. It follows that the Court’s approach in formulating recommendations under the Act should be to consider the likely pay levels and other conditions which might apply had collective bargaining taken place. In that context regard should be had to negotiated rates of pay and conditions applicable to similar categories of workers in analogous employments in which there is collective bargaining.
Section 5(2) of the 2001, 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 matters under investigation and, where appropriate, its view as to any 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 following are the recommendations of the Court: -
Rates of Pay:
The Court notes the information provided by the Company in regard to the individual pay rates of the staff, as well as the method of calculating annual increases on a performance-related basis, ranging from approximately 3% to 10% p.a. The Court has also noted the Union’s claim, as well as the list of industry comparators put forward. The Court also notes that the Company does not feel, in view of its size and present financial position, that such comparisons are appropriate.
Having considered all the evidence before it, the Court recommends as follows: -
Start Rate €300 per week
After 1 Year €320 per week
After 2 Years €340 per week
After 3 Years €360 per week
These rates to apply from 1st October, 2004. Any operative on a higher rate than €360 per week at present should hold that rate on a personal basis. Annual increases thereafter should incorporate basic national wage adjustments.
This issue should be re-examined by the parties in three years. If not resolved, it should be referred back to the Court for a recommendation.
The Court recommends that the rate for the permanent 4pm-1am shift be increased to 25%, in line with national and industry norms.
The Court notes the Company’s assurances that
- Overtime is calculated on premium rates.
- Holiday pay is calculated at the average of the 13 weeks prior to holidays.
Sick Pay Scheme:
The Court recommends that the Company should restore the existing Sick Pay Scheme with effect from 1st August 2004, that this scheme be operated consistently across the board.
Safety Health & Welfare:
On the evidence presented the Court is satisfied that the Company has, as far as possible and given the difficulty of obtaining volunteers, complied fully with legislation and good practice in this area. The Court recommends that the present arrangements be institutionalised and continued.
On the information provided, the Court is satisfied that the Company has, as far as possible, complied with best practice in this area, and recommends that this continue.
The Court is satisfied that the reason for the cessation of the scheme since 2002 is lack of Company performance. When performance improves to a level where the bonus is again triggered, it should be made clear to all employees as to what individual and Company targets need to be achieved in order to achieve quarterly bonus payments.
Anti-Bullying & Harassment /Grievance & Disciplinary 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. No 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 Labour Court, as appropriate. Similar procedures should be put in place to cover complaints of bullying and harassment.
Any submission that the Union wishes to make with regard to the content of these procedures 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.
Procedure for Resolving Disputes
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.
Where differences arise between the Company and the employees in relation to their terms and conditions of employment, such issues should be processed through the grievance procedure referred to above and if unresolved should be processed througha Rights Commissioner or the Court as appropriate. No form of strike, industrial action or interference with normal working should be engaged in by either party until the procedures are resorted to and exhausted.
In framing these recommendations, the Court has taken account of: -
(a) The apparently perilous financial position of the Company and
(b) The assertion by the Company that it has no objection to individual employees becoming members of a Trade Union.
Signed on behalf of the Labour Court
12th July, 2004______________________
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.