FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001, AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004 PARTIES : RADIO KERRY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MANDATE DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty 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.
BACKGROUND:
2. Radio Kerry was established in 1989 and operated for the County of Kerry. The Company currently has 42 employees, 19 of whom are employed on a part time basis, with an additional 30 personnel engaged as freelancers. The Unions claim before the Court relates to (a) Terms and Conditions of Employment and (b) Representation Rights. The Company submitted a supplementary submission by way of a preliminary objection to the jurisdiction of the Court to deal with this application under the Industrial Relations ( Amendment ) Act, 2001, as it contends that not all mandatory pre-conditions for a Labour Court Investigation have been met in this case.
Specifically the Company claimed that an internal procedure used for resolving disputes has not been used and that its refusal to participate in discussions at the LRC was made in good faith.
The Union made a replying preliminary submission in which it took issue with the employers contention.
On the substantive issues before the Court the Union's claims relates to the following:
- 1. Working week-Overtime
2. Salary Structures
3. Sales Targets
4. Part-Time Employees
5. Sick Pay
6. Holidays
7. Public Holidays/Sunday Working
8. Allowances
9. Employment Contracts
10. Pension Scheme
11. Procedures
12. Union Representation
The Union referred the dispute to the Labour Relations Commission under the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76/2004). The employer declined to participate in the process provided by the Code of Practice for stated reasons.
The Union referred the dispute to the Labour Court for investigation and recommendation under section 2(1) of the Industrial Relations (Amendment) Act 2001, as amended. A Labour Court hearing was arranged for 29th June 2004 but was adjourned, when the Company raised an objection to the Court jurisdiction to investigate the dispute, so as to allow the Union to prepare a response to this objection. The hearing proceeded on 13th July 2004 in Tralee.
The following is the recommendation of the Court:
RECOMMENDATION:
Preliminary Objection.
The employer raised a preliminary objection to the jurisdiction of the Court on grounds that the conditions specified at section 2(1)(a) and 2(1)(b) of the Act have not been fulfilled. The employers representative made a detailed legal submission to the Court in support of the objection. This submission raised important questions concerning the correct interpretation of key provisions of section 2(1) of the Act.
In accordance with section 3 of the Act the Court determined to deal with the preliminary issue as part of the investigation.
Section 2(1)(a)
The employer contends that on its true construction section 2(1)(a) require, as a condition precedent to a Court investigation, that internal dispute procedures normally used by the parties have failed to resolve the dispute. They say that such a procedure is contained in the employers established grievance procedure which is set out in the employee handbook. It is accepted that the procedures in question were not followed in the present dispute.
The relevant statutory provision is as follows:
It is not the practice of the employer to engage in collective bargaining negotiations 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
The employer told the Court that the handbook was furnished to staff on the company’s inception in 1997, but has not been issued since. There are currently 42 regular staff and 30 freelance contributors. Only 9 members of the current staff were employed in 1997 when the procedure in question was disseminated. The employer also claimed that the procedure was in fact used and gave instances of its use in resolving issues in dispute, including collective issues. The Union said that its members have no knowledge of the procedure ever having been used.
Having considered the submissions of the parties the Court is satisfied that the procedure in question is not one which is normally used by the parties. What was described to the Court amounted to little more than occasional incidents of some employees raising issues relating to their employment with their employer. This, in itself, could not be said to involve the use of a procedure. It is clear that no employee ever proceeded to the second stage of the procedure which requires a written application to have the matter progressed further. Moreover, the Court accepts that the vast majority of employees were not furnished with copies of this procedure and did not know of its existence. As a matter of common sense it could not be said that a procedure, the detail of which was unknown to employees, was normally used by them.
It is also significant, in the Courts view, that despite protracted correspondence between the Union and the Employer in relation to this dispute no mention was ever made by the Employer of the grievance procedure or its availability to address the issues in dispute and the matter was only raised at the first hearing before the Court.
The Court is satisfied that the procedure referred to by the employer is not normally used by the parties and is not a procedure of the type envisaged by section 2(1)(a) of the Act. This finding may be sufficient to dispose of the preliminary objection but given the importance of the points raised by the employers legal submission the Court feels that it should proceed to address those issues.
As the Court understands it in interpreting legislation plain words are given their plain and ordinary meaning and technical words are given their technical meaning unless some other intention is indicated. In more recent times there has been a move towards a schematic method of interpreting legislation whereby a Court may depart from the literal construction of an enactment and adopt in its place a teleological or purposive approach, if that would more faithfully reflect the true legislative intention gathered from the Act as a whole.
In this case the words at issue are “the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute”
The first question for consideration is what is meant by the term “dispute resolution procedure”. This is an expression which, in industrial relations parlance, normally means a procedure through which grade or group disputes concerning terms and conditions of employment can be processed. The term has, in that sense, a technical meaning. It is to be distinguished from a grievance procedure which is usually concerned with individual issues. This distinction is reflected in the simultaneous promulgation of separate Codes of Practice on voluntary dispute resolution and on grievance procedures (S.I 145 of 2000 and S.I 146 of 2000) as part of a package of measures recommended by the Report of the High Level Group established Under Partnership 2000 to examine issues surrounding union recognition and bargaining arrangements. Included in these proposals was a recommendation which lead to the enactment of the 2001 Act.
Further support for giving the expression this technical meaning can be found from the context in which it is used. The reference to disputes resolution procedures is contained in a single sentence, the first part of which clearly relates to grade, group or category disputes. On the principle of construction that words in a statute are to be interpreted in the context in which they appear, the reference to dispute resolution procedures must be interpreted as relating to procedures through which grade group or category issues can be appropriately processed where such issues are in dispute .
The Court has also considered this question by looking at the purpose of the enactment, gathered from the statute as a whole. It is clear that the intention of the Oireachtas was to give effect to the report of the High Level Group, as referred to above. Taken in its overall context that report set out to address situations in which groups of workers wish to be collectively represented by a trade union (or excepted body) in addressing issues concerning their terms and conditions in employments in which collective bargaining arrangements are not in place. It set out a mechanism by which the issues in dispute could be dealt with either through the Code of Practice on Voluntary Dispute Resolution or through the Court.
This is reflected in the overall scheme of the Act. Only a trade union or an excepted body can refer a case to the Court. The subject matter of the referral must be a trade dispute. Individuals or groups of individuals do not have a right of referral. These provisions are entirely consistent with the view that the Act is primarily concerned with resolving group or category disputes. Accordingly, any precondition to the Court’s power of investigation relating to the use of procedures could only relate to procedures appropriate for the processing of disputes of this nature.
The workers associated with this referral are in dispute with their employer on a range of issues concerning their conditions of employment. They wish to process those issues as a group or body and to be represented in so doing by a Trade Union. The procedure upon which the employer relies is a grievance procedure which expressly provides that issues must be processed individually. Furthermore, there is no provision for representation by an employee representative in using the procedure as is required by the Code of Practice on Grievance and Disciplinary Procedures. Given the type and range of issues in dispute, even if the procedure was normally used (and the Court is satisfied that it is not) the Court could not accept that the failure of employees to use such a procedure in the circumstances of this case could oust the jurisdiction of this the Court to investigate their dispute.
Finally, the limitations of this grievance procedure in addressing group issues appears to have been recognised by the employer itself. In its main submission to the Court the employer pointed out that since this dispute was first raised an in-house employee committee was established to represent staff interests in dealing with grievances concerning terms and conditions of employment.
In all the circumstances the Court is satisfied that this case can be distinguished from that dealt with in DecisionDECP041- Banta Global Turnkey. In that case the Court found that the first limb of section 2(1)(a) was not fulfilled, as it was the practice of the employer to engage in collective bargaining negotiations. This was the principal ground upon which the Court declined to investigate the substantive dispute. The Court was also of the view that the procedures in place in that case were normally used by the parties and that they were appropriate having regard to the subject matter of that dispute.
Section 2(1)(b).
Here the employer concedes that it failed to observe a provision of the Code of Practice on Voluntary Dispute Resolution but contends that it did so for good reason. The Court can see no merit in this argument. It is the fact of an employer’s failure to observe a provision of the Code rather than the reason for having done so that is relevant. Since the employer accepts that it did in fact refuse to participate in the procedures of the Code of Practice, the condition at section 2(1)(b) is fulfilled.
Conclusion on Preliminary Issue.
Having regard to the findings set out above 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.
Substantive Issues.
Having considered the submissions of the parties the Court recommends as follows in respect of each of the Union’s claims.
Working Week – Overtime.
The Court recommends that rosters be notified to employee one week in advance. Where overtime is worked employees should be entitled to elect between receiving overtime pay and obtaining time off in lieu.
Salary Structure.
The Union’s claim is for negotiations on a salary structure. Having regard to the provision of section 5(2) of the Act the Court cannot recommend concession of the claim.
Sales Targets.
The Union's claim is for negotiations on the effects of sales targets. Having regard to the provision of section 5(2) of the Act the Court cannot recommend concession of the claim.
Part-Time Employees.
The terms of the Protection of Employees (Part-Time Work) Act 2001 should be adhered to. Any complaints alleging an infringement of that Act should be processed through the procedures provided for that purpose.
Sick Pay
The Court recommends that the present arrangements be retained until there is a consensus of agreement on a new arrangement.
Holidays.
These issues should be pursued within the procedures provided by the Organisation of Working Time Act 1997.
Public Holidays / Sunday Working
These issues should be pursued within the procedures provided by the Organisation of Working Time Act 1997.
Mileage Allowance.
The Court recommends that an allowance of 51c per mile be paid to those required to use private cars in the course of their employment.
Contracts of Employment.
Employees should be provided with particulars of the terms of their contracts of employment in accordance with The Terms of Employment (Information) Act 1994. Contracts of employment should not be altered other than by agreement.
Pensions.
The Court recommends that the company introduce a defined contribution pension scheme by end September 2004. The contribution should be not less than 5% payable by the employer and 5% payable by the employee.
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.
Procedures 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 difference arise between the company and employees in relation to their terms and conditions of employment, which cannot be resolved internally, they should be processed to a 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 this procedure is resorted to and exhausted.
Implementation
The recommendations herein, save where otherwise appears, should be implemented within one month from the date of this recommendation.
Signed on behalf of the Labour Court
Kevin Duffy
27th July, 2004______________________
JO'C/BRChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.