INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001,
AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
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 case concerns a dispute between between Ashford Castle and SIPTU in relation to
(i) Pay and progression of trainees and (ii) Grievance and Disciplinary procedures.
Another issue was previously in dispute in relation to the pay of supervisors but this aspect of the claim was withdrawn at the hearing.
By way of a preliminary point, the Company stated that the Union had engaged in industrial action since the matter was referred to the Labour Relations Commission by refusing to engage in the disciplinary process. The Union denied this stating that two individuals had indicated their unwillingness to participate in the process unless adequately represented. This, the Union claimed did not constitute industrial action.
The Union's position in relation to issues of grievance and discipline is that it should decide, in discussion with its member, the appropriate stage for it to become involved in the process. The Union contends that it is inappropriate for the Company to decide when representation is required. The Company's position is that representation by a Trade Union official is not required in minor matters and as a result representation is restricted to the final stages of the procedure.
The parties are also in dispute in relation to the appropriate method by which a trainee is considered qualified in a particular post. The Company's position is that an appraisal is carried out and the worker is employed at the next level if deemed suitable and if a vacancy exists.
The Union's position in relation to the training issue, is that the JLC or approprite state agency should determine when a period of training has been completed. It conteneded that it was inappropriate for the Company to decide on this as it may result in certain workers remaining on trainees rates of pay longer than is acceptable.
The dispute was referred to the Labour Relations Commission in accordance with Section 2 of the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76 of 2004). As the dispute was not settled it was referred to the Labour Court for investigation under Section 2(1) of the Industrial Relations ( Amendment ) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004. A Labour Court hearing took place on the 19th December, 2006.
3. 1. In relation to the Grievance and disciplinary procedures, it is inappropriate and unacceptable that the Company sets down the circumstances where Union representation is allowed. The issue of when Trade Union representation in matters of grievance and discipline is required is a matter for the affected employee and their Trade Union representative.
2. As far as the trainee issue is concerned, the Company cannot unilaterally decide when a period of training is finished. The appropriate bodies to decide such matters is the Joint Labour Committee and CERT (now Failte Ireland).
The Company's proposal in this regard would mean that workers changing posts within the Hotel would suffer a loss of earnings as in each new post they would be paid only trainees rates of pay.
4. 1. It is not always necessary to involve Trade Union representation in minor matters of grievance and discipline. In the regard, the Company considers it appropriate that Trade Union representation be confined to the final stages of the procedure where the General Manager is involved and where there are issues of gross misconduct/ possible dismissal.
2. In relation to the trainee issue, the Company carrys out appraisals and staff considered satisfactory may move to the next level if such vacncies exist.
This case was referred to the Court pursuant to s2 of the Industrial Relations (Amendment) Act 2001, as amended (the Act). Three issues in dispute between the parties were referred for investigation, namely: -
1. Grievance and disciplinary procedures
2. Pay and progression of trainees
3. Pay of supervisors.
The Union indicated that it was not proceeding with its claims in respect of supervisors. Accordingly this aspect of the case was withdrawn. The Court is satisfied that the other issues form the subject matter of a valid trade dispute within the meaning of the Act.
By way of preliminary objection to the Court’s jurisdiction the Company claimed that the Union had engaged in industrial action since the dispute was referred to the Labour Relations Commission.
In making that submission the Company relied upon a letter which it had received from the Union dated 23rd October 2006 stating that individuals would not attend at disciplinary investigations unless accompanied by an official of the Union. The Company submitted that this refusal constituted industrial action and referred the Court to the definition of that term at s8 of the Industrial Relations Act 1990, as follows: -
- "industrial action" means any action which affects, or is likely to affect, the terms or conditions, whether express or implied, of a contract and which is taken by any number or body of workers acting in combination or under a common
understanding as a means of compelling their employer, or to aid other workers in compelling their employer, to accept or not to accept terms or conditions of or affecting employment;
Section 2(1)(d) of the Act provides, in effect, that the Court may not investigate a trade dispute if the trade union or the employees concerned have had recourse to industrial action after the dispute was referred to the Labour Relations Commission. It was submitted that the refusal of employees to participate in disciplinary proceedings was in contravention of their contract of employment and was industrial action.
The Union told the Court that its members were not acting in combination or under a common understanding. It submitted that two members had decided individually that they would not participate in a disciplinary process unless they were adequately represented. The Union has communicated that decision to the Company.
Conclusion of the Court
The Court does not accept that the matter complained of by the Company constitutes industrial action. There is no evidence of any meeting having been held between Union members or of any collective decision or understanding having been reached for the purpose of furthering any demands on the Company. Moreover, there was no ballot of members to authorise industrial action as is required by the Union’s rules as required by s 14 of the Industrial Relations Act 1990. The Court accepts that the Union merely wrote to the Company, on behalf of two of its members, indicating their unwillingness to participate in a process that they considered unfair and in breach of their right to representation of their choice.
The Court is accordingly satisfied that the conditions precedent to its jurisdiction contained at s2 of the Act have been met and that it has jurisdiction to investigate the dispute referred to it by the Union.
Representation in Grievance and Disciplinary Procedures
The Court notes that the employer does not object to trade Union representation of employees at any levels of its grievance and disciplinary procedure. It does however, restrict representation by a trade union official to the final stage of the procedure and then only on the giving of 48 hours notice in writing. At the earlier stages the Company procedure provides for representation by a colleague or a fellow trade union member including a shop steward.
The Union contend that it is for it, in consultation with an affected member, to determine the level at which representation is to be provided in a particular case.
It further submitted that the Company have never facilitated the training of shop stewards and in consequence members facing disciplinary procedures or seeking to raise a grievance may have concerns as to the effectiveness of the service which they could receive from a shop steward.
In response the company indicated to the Court that it would be prepared to facilitate the Union in providing training for its shop stewards.
The issue in dispute in this case is not whether trade union representation should be facilitated at all stages of the procedures concerned. The Company has conceded that principle. Rather, the point of departure between the parties relates to the level of representation and whether the employer or the employee should determine that question.
In the majority of employments in which collective bargaining takes place the responsibility of shop stewards in the processing of grievances and disciplinary matters is negotiated and set out in a collective agreement. It is also commonplace in such employments for shop stewards to be facilitated by their employers with time off for training and with adequate facilities to perform their representative role. In this case the shop stewards have not received training and there is no agreement as to their role and function within the employment. The Court cannot recommend that the parties to this dispute engage in negotiations so as to conclude such an agreement in respect of this employment.
The Court notes that the Code of practice on Grievance and Disciplinary procedures (S.I. 146) does provide at paragraph 8 as follows:-
- As a general rule, an attempt should be made to resolve grievance and disciplinary issues between the employee concerned and his or her immediate manager or supervisor. This could be done on an informal or private basis.
In the Court’s view the sentiments encapsulated in this provision should be adhered to and, as a general rule, a bona fide [and serious] attempt should be made to resolve issues at the point at which they arise. However where issues progress beyond the initial informal stage an employee should be afforded Union representation. The Court recommends that in such cases the mode and level of representation should be a matter to be decided by the Union and the affected employee. For the avoidance of doubt the Court wishes to make it clear that this recommendation is made having regard to the circumstances of this employment in which matters relating to representation of individual trade union members remain particularly fraught.
As the matter is not before it under s 43 of the Industrial Relations Act1990, this recommendation does not purport to be a formal interpretation of the Code of Practice on Grievance and Disciplinary procedures (S.I. 146).
The Court further recommends that the Company proceed with its offer to facilitate the training of shop stewards, which training should, in accordance with normal practice, be provided by the Union. When that training programme is completed the position should be reviewed with a view to putting in place representational procedures which conform to the general practice in employments which were relied upon by the union in its original application under the Act and which were found to be appropriate for that purpose by the High Court inAshford Castle v SIPTU 17 E.L.R. 201.]
Pay and progression of trainees
The Court recommends that the system of payment and progression of trainees introduced by the Company (as outlined to the Court) be accepted subject to the following modifications:
•Any dispute or issue arising between the company and an individual trainee concerning their failure to progress to the next level of competency should be addressed through the internal grievance procedure, as modified by this recommendation, and if unresolved should be referred to a Rights Commissioner.
•On reaching the final level of competence, and on becoming qualified, the employee should be paid the full rate applicable to his or her occupational category.
Save where otherwise indicated this recommendation should be implemented within one month from the date on which it is issued.
Signed on behalf of the Labour Court
22nd January 2007______________________
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.