INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001,
AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004
IRISH GUIDE DOGS FOR THE BLIND
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Referral from the Labour Relations Commission under the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.
2. The issues in dispute which concern a number of workers who are union members are as follows:-
Retention of Public Holiday Benefit as previously enjoyed by staff.
Retention of Sick Pay Scheme.
Extra Annual Leave to reflect service as follows:-
Three -Five years Two extra days.
Five to Ten years Three extra days.
Ten to Fifteen years Four extra days.
Fifteen to Twenty years Five extra days.
Twenty years plus Six extra days.
The Union sought a meeting with the Company to discuss these issues and also union recognition. The Company declined to meet the Union. The issues were referred to the Advisory Service of the Labour Relations Commission under the provisions of the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76 of 2004) Both parties engaged in the process but agreement was not reached . The dispute was referred to the Labour Court on the 24th April, 2006, in accordance with Section 2 of the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004. Court hearings were held on the 8th June, 2006 and 6th September, 2006.
3. 1.PublicHolidays. The previous arrangement which applied in the Company was two day's in lieu and one day's pay for working the Bank Holiday. The Company reverted to the statutory entitlements which provide either:
A paid day off on the pubic holiday, or
A paid day off within a month, or
An extra day's leave, or
An extra day's pay.
2. It is unfair of the Company to change these arrangements unilaterally. The previous arrangements for public holiday working would not be considered exceptional in employment and is common throughout the private and public sectors.
3.Sick Pay. It was custom and practice that there was no service qualifications with regard to sick pay..Every employee who had over six months service who was on sick leave was granted full pay up to a six months threshold, and in some cases, beyond.
4. The scale of entitlement in the new sick pay scheme, now based on length of service, is especially punitive in that workers with over ten years' service or over only receive 123 days at the top of the scale, previously they had at least 130 days. Workers with less than two years service now only receive 20 days.
5.Annual Leave. In comparable employments enhanced holidays are the norm. Throughout the public sector extra annual leave days, dependent on service, is widely granted.
4. 1.Public Holidays. The Company advised all employees by letter in May, 2005 that it was standardising the way public holidays entitlements were being treated in the employment and its intention was to grant public holiday entitlements within the procedures provided for by the Organisation of Working Time Act, 1997. Workers were asked to give feedback and, through their line manager, work out which option best suited their needs. The Company's action standardised the arrangement in the employment and also gave employees the option to be paid for working the public holiday instead of time in lieu.
2.Sick Pay.The Sick Pay Scheme was introduced in November, 2004 and followed on from discussions held in November, 2003 where agreement was sought to increase productivity and put in place a sick pay scheme in return for an increase in the employer's pension contribution from 5% to 8%. The increase in pension contribution was paid from January, 2004. The Sick Pay Scheme provides for a continuation of salary payments during periods of medically certified absence with the following scale:
Length of Service.Medically Certified Days.
During probation None.
From end of probation up to two years 20
From two years up to five years 44
From five years up to ten years 68
From ten years and over 123
The Company has no record of any other Sick Pay Scheme which applied in the employment prior to November, 2004.
3.Annual Leave. The Company currently grant annual leave of statutory entitlement plus two extra days.
The dispute was referred to the Court pursuant to Section 2(1) of the Industrial Relations Act, 2001, as amended. At the commencement of the hearing the Employer raised a preliminary objection to the Court's jurisdiction to investigate the dispute. The Court determined to investigate this aspect of the case as part of its substantive investigation.
The Employer submitted that no trade dispute existed between it and the Union on the matters referred to the Court. It was stated on behalf of the Employer that in the course of the engagement between the parties at the LRC, the Union had indicated that the only issue in dispute was in relation to trade union recognition. The Employer further contended that it has an internal procedure through which the matter which form the subject matter of the referral could have been processed but that no member of staff had sought to utilise that procedure.
Decision of the Court on the Preliminary Issue
Existence of a trade dispute.
InRyannair v the Labour Court and IMPACT, 1 ELR, Hanna J pointed out that in embarking on an investigation under the Act of 2001 the Court must first be satisfied that a trade dispute exists before considering if the other conditions precedent to its jurisdiction have been met. As this Court pointed out in Recommendation LCR 18583,O'Connor Meats and SIPTU, the Court's jurisdiction under the Act is founded on the application by a trade union or an excepted body for the investigation of a trade dispute made pursuant to Section 2 of the Act. It follows that the Court must be satisfied that at the time at which its jurisdiction is invoked, and at the time of the investigation, a valid trade dispute, within the statutory definition, exists.
The Court has no doubt that the ultimate ambition of the Union is to obtain recognition by the Employer for collective bargaining purposes. Equally, in the course of the engagement between the parties at the LRC it may have been intimated that if the Employer was prepared to recognise the Union for the purpose of collective bargaining the other issues would not be pursued at that time. However, it is clear that overall agreement was not reached at the LRC and that the Union subsequently indicated that it wished to pursue the issues forming the subject matter of this referral. The Employer was not then nor is it now willing to concede those issues. Consequently they are a matter of difference between the parties in relation to the conditions of employment of those associated with this claim. This constitutes a trade dispute within the meaning of Section 3 of the Industrial Relations Act, 1946, which is the appropriate definition of that term for the purposes of the Act of 2001. While the Union may have an ambition to gain recognition this is not a material matter to take into account in determining whether there was a trade dispute at the time this matter was referred to the Court.
Use of Procedures.
The Employer has a grievance procedure in place which, it contends, should have been used in an attempt to resolve the issues before the Court. The procedure referred to is a typical individual grievance procedure. It is not a dispute resolution procedure, as that term is generally understood. The issues in dispute between the parties are collective in nature and in the Court's view, could not have been processed through the procedure relied upon by the Employer.
No issue was taken in relation to any of the other conditions specified at Section 2(1) of the Act.
Decision on the preliminary issue
For the reasons referred to the Court is satisfied that a trade dispute exists between the parties. The Court is further satisfied that the conditions specified at Section 2 (1) of the Act have been met and that the Court has jurisdiction to investigate the dispute referred to it by the Union.
Issues in dispute.
The Court is satisfied as a mater of fact that the custom and practice of the employer was to afford employees in the grade or category associated with these claims one day's pay and two days off in respect of working a Public Holiday. The Court recommends that the arrangement be restored with retrospective effect.
The Court accepts that a certain practice was in place in relation to sick pay whereby staff may have had an expectation that they could receive full pay for up to six months. However, it is equally clear that the employer retained discretion in relation to the payment of sick pay and that the instances of payment for the duration claimed made the practice uncertain. Nonetheless the Court is of the view that the prior arrangement should be reflected in the new and formal arrangement introduced by the employer. Accordingly the Court recommends that the sick pay scheme introduced by the employer be modified as follows:-
Length of Service No. of Medically Certified Days
During probation None
From end of probation up to two years 20
From 2 years up to 5 years 44
From 5 years up to 7 years 68
From 7 years and over 130
The Court notes that only two comparators were cited by the Union in support of its claim for additional annual leave. The Court cannot conclude, on the basis of this limited information, that the current arrangements are out of line with appropriate standards. Accordingly the Court does not recommend concession of this claim.
Save where otherwise indicated the terms of this recommendation should be implemented within one month form the date on which it is issued.
Signed on behalf of the Labour Court
18th September, 2006______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.