INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 6(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001
ASHFORD CASTLE LIMITED
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Request by the Union for a Determination in relation to Labour Court Recommendation 17914.
2. A Court hearing was held on the 14th December, 2004.
On 23rd February 2004 the Court issued Recommendation No LCR17760 in a dispute between the parties which it investigated pursuant to section 2(1) of the Industrial Relations (Amendment) Act 2001 (the Act). On 22nd July 2004 the Court issued its final Recommendation LCR17914 in the said dispute. On 19th November 2003 the Court had issued Determination DECP032 by which it determined that the requirements of section 2(1) of the Act had been met and that the Court had jurisdiction to investigate the said dispute. By letter dated 19th October 2004 the Union requested the Court to make a determination pursuant to section 6(1) of the Act. It is common case that the dispute, which was the subject of recommendations under section 5 of the Act has not been resolved.
Construction of Section 6 of the Act.
It is the employerâ€™s case that Recommendation LCR 17914 issued by the Court under section 5, or a part of that Recommendation, was grounded on unsound and incomplete information. It submitted, through Counsel, that in these circumstances the Court is precluded from making a determination. In support of this submission Counsel contended that on its true construction, section 6(3) of the Act only allows the Court to make a determination in the same terms as the recommendation under section 5. However, Counsel submitted, where the recommendation was grounded on unsound or incomplete information the Court is precluded from making any determination.
The relevant statutory provisions are as follows:
- Recommendation by the Court in trade disputes
â€œ5.-(1) The Court, having investigated a trade dispute under section 2, may make a recommendation giving its opinion in the matter and, where appropriate, its view as to the action that should be taken having regard to terms and conditions of employment, and to dispute resolution and disciplinary procedures, in the employment concerned.
(2) A recommendation under subsection (1) shall not provide for arrangements for collective bargainingâ€.
Determination by Court on trade dispute
â€œ6.-(1) Where, in the opinion of the Court, a dispute that is the subject of a recommendation under section 5 has not been resolved, the Court may, at the request of a trade union or excepted body and following a review of all relevant matters, make a determination.
(2) â€“ A determination under subsection (1) may have regard to terms and conditions of employment, and to dispute resolution and disciplinary procedures, in the employment concerned but shall not provide for arrangements for collective bargaining.
(3) A determination under subsection (1) shall be in the same terms as a recommendation under section 5 except where-
(a) the Court has agreed a variation with the parties, or
- (b) the Court has decided that the recommendation concerned or a part of that recommendation was grounded on unsound or incomplete information.â€
Moreover, in the Court's view, if Counsel were correct in contending that the section only authorises the Court to make a determination in the same terms as the recommendation under section 5, or not at all, subsection (2) of section 6 would be superfluous or tautologous since the requirements of this subsection are already provided for at subsections (1) and (2) of section 5. It is well settled that a statute cannot be interpreted to produce such a result.
Accordingly, the Court is satisfied that if it accepts that part of its recommendation under section 5 of the Act was grounded on unsound or incomplete information it can make an appropriate modification in its determination under section 6.
Reasons for the Determination.
The Court has had regard to all relevant circumstances and has decided that it should make a determination in this case. The Court has had particular regard to the cost implications for the employer of the determination which follows. However, this consideration must be balanced with the entitlement of the workers associated with this claim to rates of pay and other conditions of employment which are fair and reasonable in all the circumstances. In formulating its recommendation under section 5, and in this determination, the Court has balanced both considerations and has sought to produce a result which is fair and equitable to both the employer and the workers.
In the course of its investigation of this dispute both parties provided the Court with comprehensive information concerning rates of pay and other conditions applicable to comparable grades of staff in similar employments. The Court had full and careful regard to all of the information with which it was provided. In formulating its recommendations under section 5 the Court considered it appropriate, in the circumstances of this case, to have particular regard to rates of pay and other conditions of employment established by collective bargaining in establishments providing a broadly similar level of service to customers, and applied to staff having levels of skill and experience similar to those expected of the workers associated with the present claims.
Accordingly, the Court does not accept that its recommendation on pay was based on unsound or incomplete information.
The Court notes that the employer did indicate that it had difficulty identifying the actual categories to which the various rates recommended should apply. It initially asked the Court to particularise the actual rates which should apply to the individual occupational descriptions which it uses. It later withdrew from its position on that point, contending that the Court was not entitled to depart from the terms of its recommendation so as to provide that level of detail.
The Court provided clarification on the application of its recommendation in this regard in a letter to the company dated 1st September 2004. In its clarification the Court pointed out, inter alia, that its intention was to provide for minimum rates of pay for fully trained and fully qualified staff in the occupational designations listed in the recommendation. The Court cannot accept that, having regard to the clarification issued, the employer will experience difficulty in applying this aspect of the recommendation.
The Court is of the view that employees should have some basic entitlement to paid sick leave so as to afford them a degree of financial security during periods when they are unable to work due to medically certified illness. In formulating its recommendation on sick pay in this case the Court took account of information provide by the applicant Union concerning a sick pay agreement with a named hotel group. Further information has now been provided by the employer which indicates that the higher benefits claimed by the Union are only applicable to a small category of employees who transferred from an associated employment. In these circumstances the Court accepts that its recommendation of up to 13 weeks sick pay per year was grounded on unsound and incomplete information. Accordingly, the provision on sick pay contained in this determination is not in the same terms as that contained in the recommendation made under section 5.
In its interim recommendation, LCR17760, the Court recommended that the employer put in place a grievance and disciplinary procedure which complies with the general provisions of the Code of Practice on Grievance and Disciplinary Procedures made under section 42 of the Industrial Relations Act 1990. The provision in relation to grievance and disciplinary procedures contained in this determination is in the same terms as the recommendation under section 5. Any dispute between the parties as to whether or not the employerâ€™s disciplinary procedure, as amended to comply with the determination of the Court, conforms to the terms of the Code of Practice, should be processed in accordance with section 43 of the Industrial Relations Act 1990.
In respect of all other employment related conditions referred to in LCR17914 the Court is satisfied that its recommendation was grounded on sound and complete information and that the conditions recommended as aforesaid are fair and reasonable having regard to all the circumstances. Accordingly the determination which follows, in respect of these conditions, is in the same terms as the recommendation issued under section 5.
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.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 Court, as appropriate.
This procedure should be put in place within one month from the date of this Determination. 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.
Rates of Pay.
The rates of pay set out in the schedule to this determination should apply to the categories covered by the Union's claim and detailed in its submission of 18th February, 2004.
All rates are expressed in Euros per 39 hour week and are inclusive of live in /live out allowances as stipulated by the Minimum Wage Act, 2000. They are also inclusive of the payment derived from one point of the service charge in the case of those categories to which service charge is applicable. The rates are in respect of the basic grades in question and apply to staff who are trained and qualified in the duties of the grade. They are not applicable to trainees or those having extra responsibilities. Where individuals have rates higher than those recommended, the difference should be retained on a personal to holder basis.
A sick pay scheme should be put in place which provides for 6 weeks sick leave on full pay in any year, less social welfare. All leave should be covered by medical certification and no payment should be due for the first three days of any illness. The scheme should be available to all employees who have completed two years service. The present sick pay arrangements should continue in respect of those who have completed their probation but have less than two years service.
The contribution to the pension scheme should be 5 % from the employer and 5% from employees. The Company should also take steps to have a worker trustee appointed to the scheme.
The Court accepts the Union's contention that the manner in which accommodation was marketed by the Company could give the erroneous impression that a service charge is included. This in turn may have resulted in staff receiving fewer gratuities than might otherwise have been the case . Given that tipping can be a significant source of income, the Court determines that the Company should clarify to its customers the current arrangements on service charge.
The Court believes that all staff who work in the Boutique should receive some share of the commission on sales. The division of the commission should be agreed between the staff concerned and if agreement is not reached the matter should be processed through the grievance procedure provided for in this determination.
This determination should be implemented within one month from the date on which it is issued.
|Receptionist: â‚¬350 pw.|
|Day Porter: â‚¬372 pw.|
|Night Porter: â‚¬411 pw|
Assistant â‚¬372 pw
|Linen Porter: â‚¬372 pw|
|Bartender: â‚¬450 pw|
|Assistant: â‚¬337 pw|
|Assistant: â‚¬337 pw|
/ Waitress: â‚¬450 pw
|Chef: â‚¬450 pw|
The Court so determines.
Signed on behalf of the Labour Court
14th January, 2005______________________
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.