FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 32, INDUSTRIAL RELATIONS ACT, 1946 PARTIES : J. J. RHATIGAN & COMPANY (REPRESENTED BY KIERAN MURPHY & CO. SOLICITORS) - AND - BUILDING AND ALLIED TRADES UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Construction industry Registered Employment Agreement - wages and conditions of employment.
BACKGROUND:
2. The Company is one of Ireland's leading Construction Companies and is involved in all sectors of the industry. In November 2010 four bricklayers were made redundant from Heuston Station and Palmerstown sites and were not offered positions at other Company sites where brickwork was still ongoing.
The Union claim that this action amounts to a breach of the REA (Section 11) and on the 18th May, 2011 the Union referred the issue to the Labour Court, in accordance with Section 32 of the Industrial Relations Acts 1946 as amended.
A Labour Court hearing took place on the 10th January, 2012.
UNION'S ARGUMENTS:
3. 1. The Company laid off four Bricklayers and failed to reinstate them even though work was available on other Company sites. Under Section 11 of the REA the Company is obliged to engage with the Union regarding disputes and attend the Construction Industry Disputes Tribunal if requested to do so, their refusal to engage automatically renders them outside of the protection of the Registered Employment Agreement.
2. As the Company is clearly a non compliant contractor, the Union has a right to ballot its members for industrial action.
COMPANY'S ARGUMENTS:
4. 1. The Company has resolved not to employ Bricklayers directly but rather engage subcontractors to do all the brickwork There are no BATU members currently working for the Company and this has been the situation for approximately a year.
2. A Construction Industry Disputes Tribunal hearing took place during September 2011 and has not yet issued its findings. The Company is of the view that the complaint by the Union to the Labour Court is unnecessary and premature given the circumstances.
DECISION:
This is a complaint by the BATU alleging a breach of the Registered Employment Agreement (Construction Industry Wages and Conditions of Employment) (the REA) as varied made pursuant to Section 32 of the Industrial Relations Act 1946, as amended.
The Union submitted that the Employer was in breach of Clause 11 “Procedures for Settling Grievances and Disputes”. In particular, the Union submitted that as the Company did not comply with the terms of Clause 11, it should now forfeit the protections provided by the Agreement.
Clause 11 of The Registered Employment Agreement:
PROCEDURE FOR SETTLING GRIEVANCES AND DISPUTES
If a trade dispute occurs between workers to whom this Agreement relates and their employers, no strike or lock-out, or other form of industrial action shall take place until the following procedures have been complied with and the Labour Court has issued a recommendation.
Category A Disputes
For the purposes of this Agreement questions concerning local matters or matters of an individual nature are regarded as category A disputes. Where these disputes arise, the following procedure shall be complied with :- (a) The grievance or dispute shall in the first instance be discussed between the parties concerned. If the dispute is not resolved within 3 days it may be referred to the trade union concerned and, where appropriate, the Construction Industry Federation (CIF). Notice in writing of the dispute shall be given by the individual concerned or his trade union to the CIF.
(b) If the dispute is not resolved within 7 days, or such longer period as may be mutually agreed, the issue may be referred to a Construction Industry Disputes Tribunal (CIDT).
(c) The CIDT will issue a decision within one week. The decision of the CIDT, where unanimous, shall be binding.
(d) Other decisions may be appealed to a Rights Commissioner, the Labour Relations Commission or the National Joint Industrial Council (NJIC) as appropriate.
(e) If the issue remains unresolved, it shall be referred to the Labour Court for investigation and recommendation.
- (a) The grievance or dispute shall in the first instance be discussed between the parties concerned. If the dispute is not resolved within 3 days it may be referred to the trade union concerned and, where appropriate, the Construction Industry Federation (CIF). Notice in writing of the dispute shall be given by the individual concerned or his trade union to the CIF.
The Company stated that no one had brought any matters of concern to its attention on site, therefore it was not aware of the reasons for the meetings being sought by the Union, consequently it responded to the Union requesting clarification on the issues in dispute. The Company submitted that numerous telephone conversations took place between the Company and the Union and it was agreed that the issues would be the subject of a Construction Industry Disputes Tribunal (CIDT) hearing in 2011.
On 16th December 2010, the Union referred the matter to the CIDT in accordance with Clause 11. However, when no hearing had been arranged by 17thMay 2011 it decided to refer the complaint under Section 32 to the Labour Court. Subsequently, in August 2011, the Labour Relations Commission scheduled a hearing of the CIDT for 22ndSeptember 2011. Both the Company and the Union attended the hearing. The Company submitted to the Court that that process had not been concluded. The Union stated that due to the length of time it had taken to arrange a hearing coupled with its lack of confidence in the Company’s commitment to resolve matters in dispute, it decided to pursue its case through the Labour Court rather than at the CIDT hearing.
Having examined the submissions of both parties, the Court is not satisfied that the Union’s complaint is well founded. The Court is seriously concerned at the length of time it has taken to arrange a hearing of the CIDT, the clear intention of Clause 11 is to ensure that the process is progressed in a swift manner. The Court concurs with the view expressed by the Company that the complaint under Section 32 is premature as the CIDT process has not been exhausted to finality. Accordingly, the Court does not find that the Company was in breach of Clause 11 of the Registered Employment Agreement (REA). Clearly there was some confusion over the subject matter of the dispute between the parties, this was not helped by a mistake made in setting up a conciliation conference at the Labour Relations Commission at one point instead of a hearing of the Construction Industry Disputes Tribunal. Therefore, the Court does not find the complaint well founded under Section 32 of the Industrial Relations Act 1946.
However, at the hearing before the Court the Company made it clear that it was willing to resume the discussions initiated under the CIDT. The Court is of the view that such discussions should re-commence with immediate effect in an attempt to resolve matters which the Union raised with the Company in October 2010 and both parties should fully engage with this process to bring matters to a conclusion. This process should be completed within four weeks from the date of this Decision.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th January, 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.