SECTION 2 (1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001
CONDUIT ENTERPRISES LTD
(REPRESENTED BY MS ROSEMARY MALLON B.L. INSTRUCTED BY A&L GOODBODY, SOLICITORS)
- AND -
COMMUNICATIONS WORKERS UNION
(REPRESENTED BY MS COLLEEN CLEARY, C C SOLICITORS)
Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Ms Tanham
1. Rates of Pay, Salary Increments, Night Shift Rates, Pension Scheme, Lead Operator Allowance, Bank Holiday Pay
2. The parties to this dispute met under the auspices of the Workplace Relations Commission Advisory Service. Agreement was not reached and the dispute was referred to the Labour Court on 14 October 2016 under the provisions of the Enhanced Code of Practice on Voluntary Dispute Resolution (SI 76/2004) in accordance with the provisions of the code, and the Industrial Relations (Amendment) Acts 2001-2004 as amended by the Industrial Relations (Amendment) Act 2015. A Labour Court hearing took place on 3 January 2017.
This dispute was referred to the Court by the Communications Workers Union (the Union) for investigation pursuant to s.2(1) of the Industrial Relations (Amendment) Act 2001 (the Act), as amended initially by the Industrial Relations (Miscellaneous Provisions) Act, 2004 (the Act of 2004) and subsequently by the Industrial Relations (Amendment) Act, 2015. The dispute concerns pay and pension of Emergency Call Answering Service (ECAS) Workers who are members of the Union and employed by Conduit Enterprises Ltd (the Employer).
The issues giving rise to the dispute were previously referred to the Workplace Relations Commission in accordance with the provisions of the Code of Practice on Voluntary Dispute Resolution made under s.42 of the Industrial Relations Act 1990. However no resolution was achieved in that process and the Court received a report from the Workplace Relations Commission to the effect that no further efforts on its part would advance the resolution of the dispute.
The employer is a subsidiary of Conduit Global, a cloud based fully integrated BPO company providing multi-channel contact centre, back office, professional managed services. In Ireland the company manages two contact centre contracts in respect of Emergency Call Answering Services. The role of the ECAS is to respond to all incoming 112 and 999 calls to the Emergency Services in Ireland and to identify and pass the call through to the appropriate Emergency Service (Garda, Fire, Ambulance or Coast Guard and Air Traffic Control).
Approach of the Court
Section 2 of the Act as amended sets out certain requirements which must be complied with prior to the Court conducting an investigation. The Court decided, in accordance with the Act at Section 3, to consider whether the requirements specified in Section 2 of the Act have been met as a preliminary matter to its investigation under that section.
The Act as amended at Section 3 states
- 3.—Any question as to whether the requirements specified in section 2 have been met may, as the Court considers appropriate, be determined by the Court either by way of a hearing preliminary to the Court's investigation under that section or as part of that investigation.”.
Requirements specified at Section 2.
It is common case that it is not the practice of the Employer to engage in collective bargaining. It is also common case that the Employee Forum operating in the Employer company is not an excepted body within the meaning of the Act.
The substantive matter between the parties is whether the requirements as specified in the Act at Section 2(3) as amended by Section 28 of the Act of 2015 have been complied with.
The Act as amended provides at Section 2 (3)
- The Court shall decline to conduct an investigation of a trade dispute under subsection (1) where it is satisfied that the number of workers who are party to the trade dispute concerned is such as to be insignificant having regard to the total number of workers employed by the employer concerned in the grade, group or category to which the trade dispute concerned refers.
The grade / category of worker concerned in the within dispute is ECAS operator. The Union made a statutory declaration on 1stDecember 2016 to the effect that it had 19 ECAS operators in membership and detailing the date each joined the Union and the location of their employment with the Employer.
The Employer confirmed that it did not dispute the content of the Union’s statutory declaration.
Position of the Union as regards Section 2(3)
The Union in its final submission to the Court on this matter contended that the number of ECAS operators employed at or about the time of the making by the Union of its Statutory declaration was 61. The Union therefore contended that it represented 19 out of 61 or 31.14% of ECAS operators and contended that this number was not such as to be insignificant.
The Union noted that the Employer contended that it currently employs 65 ECAS operators. The Union contended that even if this were to be accepted as the valid comparator figure, which it was not, the Union represented 29% of ECAS operators and this number was not such as to be insignificant.
The Union contended that its statutory declaration is the appropriate measure of the number of workers who are party to the within trade dispute. The Union contended that turnover of employees of the Employer was such as to mean that numbers in membership of the Union rose and fell but that in any event the appropriate measure is that which derives from the statutory declaration made in accordance with the procedures laid down in the Act. The Union accepted that six of the members declared as being in membership at the date of the Statutory Declaration may not have been in membership at the initiation of the dispute but also asserted that many members who were in membership at that time were, as a result of the rate of staff turnover in the employment, no longer in membership at the date of the statutory declaration.
Position of the Employer as regards Section 2(3)
The Employer asserted in its final submission to the Court that it currently employs 65 ECAS operators. The Employer asserted that it employed 64 ECAS Operators at or about the time of the making by the Union of its Statutory Declaration. The Employer contended that the Trade Union, taking the numbers set out in its statutory declaration, represents 19 out of 65 or 29% of ECAS operators currently employed. The Employer contended that this number was such as to be insignificant within the meaning of the Act.
The Employer contended that it is inappropriate for the Court to accept the statutory declaration of the Union as the appropriate measure for the purpose of determining matters arising under Section 2(3) of the Act. The Employer contended that at the time of initiation of the within dispute in 2015 the Union membership was different to that obtaining on 1stDecember 2016, the date of the Union’s statutory declaration. The Employer contended that the length of membership of those identified on the statutory declaration in pursuance of the requirements of the Act at Section 2A(1)(b) was less than the period of the dispute and as such six of the identified members could not have been in membership of the Union at the commencement of the dispute. The Employer contended that the Court is obliged to take account of the fact that the Act, at Section 2A, requires not alone a statement of membership numbers but also length of membership of those declared to be members of the Union and to attach significance to that requirement.
Discussion and conclusions
The Court finds that the requirements at Section two of the Act which are precedent to the conduct of an investigation in accordance with that section of the Act have been met in respect of Section 2 (1)(a), (b)(ii), (c) and (d).
The remaining issue for the Court to determine arises from the provisions of the Act at Section 2(3).
The Employer has contended that the Court should, for the purposes of determining matters arising from Section 2(3) of the Act, make a mathematical adjustment to the numbers set out in the Statutory Declaration made by the Chief Officer of the Union to take account of the fact that six members of the Union were not in membership of the Union at the date of initiation of the dispute. The Union rejects this contention.
The within dispute came within the jurisdiction of the Court as a result of a referral which included a report from the Workplace Relations Commission made in pursuance of Section 2(1)(b)(ii) of the Act. That report from the Commission was made to the Court on 14thOctober 2016. The Court had no function of investigation of the within dispute until that date.
The requirements of the Act at Section 2A are expressed in the present tense. It follows that the requirement on the Chief Officer of the Union making a statutory declaration as regards the number of members of the Union who are in the employment of the Employer and who are party to the Trade dispute is a requirement to state as fact something which is, at the date of making of the declaration, current.
The Act provides that the Statutory Declaration of the Chief Officer of the Union “may be admissible in evidence without further proof unless the contrary is shown, of such numbers and such period”. The context for such admission into evidence of the Statutory Declaration is the Court’s function at Section 2(3) of the Act which is to satisfy itself that the number of workers who are party to a Trade Dispute are not such as to be insignificant in the manner specified.
The Court draws from the Statutory Declaration only its content which is undisputed. The Court understands the contention of the Employer that the Declaration demonstrates that the length of membership of certain individuals specified is such as to mean that they were not in membership of the Union at earlier stages of the dispute. The Court also understands that the requirements of the Act are such that the Chief Officer of the Union is not in a position to declare membership details other than on a current basis. The Court further understands that while assertions have been made as regards numbers who were not in membership of the Union at earlier stages of the dispute no assertions have been made as regards numbers of ECAS operators who were actually in membership at any earlier stage in the dispute.
The parties are disagreed as to whether the number of ECAS operators employed by the Employer at this time should be properly regarded by the Court as 61 or 65. The mathematical impact of this disagreement, if the number of workers who are party to the trade dispute is 19, is that the number of workers involved in the within trade dispute is either 29% or 31.14% of the total number of ECAS operators employed by the Employer.
The Court takes account of the evidence supplied as part of the statutory declaration and all of the submissions made as regards turnover of staff in the employment and timelines of the dispute. The Court is satisfied that at the point of referral of the dispute to the Court in October 2016 the number of workers who were party to the within trade dispute was 19 ECAS operators. Thus, at the point of coming into the jurisdiction of the Court of the within dispute and the consequent engagement of the functions of the Court, the number of workers who were party to the trade dispute was 19.
The Court is satisfied therefore that the number of workers who are party to the within trade dispute is 19 and that this number is not insignificant relative to the total number of ECAS operators employed by the employer whether that number is 61 or 65.
For the reasons stated above the Court is satisfied that the requirements of the Act at Section 2 have been complied with in their entirety and the Court will now proceed to carry out an investigation under Section 2 of the Act.
Signed on behalf of the Labour Court
25 January 2017______________________
Enquiries concerning this Recommendation should be addressed to Michael Neville, Court Secretary.