Complainant

Respondent

Parties

Stephen  Darling

Esb Networks

Complainant

Respondent

Anonymised Parties

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Representatives

John Keenan JRK Business Support & Employee Advocacy Services

Lisa Devanny Horan Enterprise Services Legal

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004

CA-00047522-001

06/12/2021

The Complainant is a Network Technician (NT) employed by the Respondent since 2000.

This complaint was submitted to the Workplace Relations Commission on 6th December 2021.

Introduction

The Complainant is a Network Technician (NT) based in Finglas, Dublin, who has been employed with ESB Networks since 2000.

He was recruited as a Grade 502 NT and was upgraded to a Grade 503 NT in 2007 following a performance review.

He is currently on a rate of pay that is not part of the scheduled rates that apply to NTs in the 502 to 504 incremental scale, Grade Portfolio.

His rate of pay is a mid-point between the maximum point of Grade 503, and the maximum point of the  Grade 504, but is not a rate prescribed within the NT Grade Portfolio. It is unique to The Complainant.

Rate of Pay

The Complainant was placed on his current rate of pay following agreement reached at an internal conciliation meeting held on September 12th, 2018.

This agreement was reached consequent on The Complainant’s pursuit of a formal grievance which he submitted in December 2017. This grievance was subject of both a grievance hearing and a grievance appeal before being referred to a conciliation conference under the auspices of the ESB Industrial Council.

The grievance centred on The Complainant’s complaint that he was not awarded an upgrading in the routine performance review process provided for in a collective agreement reached in 1996.

The process is known as the NT Portfolio Review.

In summary, The Complainant complained that his performance merited an upgrading from Grade 503 to 504, but that he was not upgraded because of his involvement in trade union activities during negotiations on a collective agreement known as the PC & I Agreement concluded in 2016.

At that time, he was a member of the SIPTU trade union, a member of the ESB Group of Unions (GoU), and was represented by SIPTU in the grievance process up to the point at which, in the absence of a resolution, it was referred, per procedure, to the ESB Industrial Council.

Complaint for Adjudication

The complaint, which is subject of this Adjudication Hearing, in essence, is similar to The Complainant’s 2017 grievance.

The Complainant contends, and it is submitted, that he was not upgraded in the 2020 Portfolio Review because of his participation in trade union activities, specifically on behalf of the Independent Workers’ Union (IWU). He is now a member of the ESB Branch Committee of IWU and has represented colleagues in individual cases.

In his 2017 grievance, The Complainant was successful in obtaining an upgrading in the Portfolio Review because it was ultimately conceded that he was not initially upgraded because of his noted visible and vocal opposition to proposals being pursued by the Respondent in a collective agreement known as the ‘PCI Agreement’.  It was contended that during the negotiation process a management accusation was made by Mr Glenn Pope the senior manager leading talks, that the Complainant, then involved as an NT representative, was obstructive in relation to the negotiation process.

In the instant case, the Complainant contends, and it is submitted, that he has been victimised because of his membership of, and trade union activities within, the ESB Branch of the IWU. The IWU Branch is and has been on record as opposing measures contained within the most recent collective agreement signed by the Group of Unions and ESB Networks. This agreement is referenced as the ‘Building a Better Climate (BBC) Agreement’.

The IWU Branch has formally rejected the BBC Agreement, and in doing so has sought to engage directly with the Respondent or through facilitated discussions to address issues of concern. To date the Respondent has declined to engage in the discussions proposed.

The rejection of the BBC Agreement should be seen within the context of the fact that the IWU Branch membership exceeds 400. all of whom were excluded from participation in the ballot recorded in favour of the BBC Agreement proposals. In this ballot conducted by the ESB GoU, from which the IWU Branch is excluded, the majority in favour was just over 300.

The Complainant’s opposition to the BBC Agreement and non-participation in components of this agreement is and has been fully in line with his Union’s stance/policy.

The Complainant contends, and it is submitted, that he was not awarded an upgrading in the 2020 Portfolio Review because of his conformity with the IWU Branch’s position.

He further contends, and it is submitted that, that the performance criteria applied in the 2020 Review were not, at the time agreed with any trade union.

The review process lacks fundamental transparency and objectivity, required fair process.

Moreover, the Portfolio Review Process, in this instance was used as a medium to facilitate sanction rather than to promote good performance. In the instant case sanction was applied without recourse to fair procedure or indeed any procedure that can reasonably be said to conform with natural justice.

The Complainant, contends, and it is submitted that he has been victimised in manner that strongly suggests that the fundamental basis for his successful pursuit of grievance related to the 2017 Portfolio Review has remained rather removed, and consequently his path to promotion remains ‘blocked’.

 Portfolio Review

In the 2020 Portfolio Review process, the Complainant had his work performance reviewed by his supervisor and who advised him that he had scored the maximum score. His review did not entail a meeting or discussion, assumed to be because of the then applicable Covid-19 restrictions.

His score was submitted verbally to the Area Manager, Mr Eoghan Judge as part of the established routine.

It was Mr Judge’s responsibility to award the promotional grades available in his area of responsibility, again in line with the agreed Portfolio Review process.

Despite his supervisor’s maximum performance rating, The Complainant was not upgraded.

He would later learn that he was not credited as having received the maximum score, as advised by his supervisor.

It appears that Mr Judge downgraded him.

After his grievance appeal, he was provided with a score sheet, he hadn’t seen previously. In this, it was revealed to him that he had had his performance rated against 20 listed criteria.

Each criterion was allocated maximum of 5 points. The Complainant was recorded as having scored 81 points from the 100 points available.

Chronology

June 9th, 2021

Partly prompted by an accusation of intimidation against him by a senior ESB manager, in the presence of his Supervisor, The Complainant submitted a formal grievance under the ESB Grievance Procedure, dated June 9th, 2021.

In his grievance The Complainant stated that the basis for his grievance was;

“1. The system used to rate the NT was part of the new proposals that were rejected in 2020 and should not have been used.

2. I also feel that the block on me from 2017 still exists.”

The Complainant provided documentation related to his previously successful grievance in 2017, which, as already stated resulted in an increase in his rate of pay following a conciliation conference under the auspices of the ESB Industrial Council (12/09/2018). He had complained that a “block” had been put on him in respect of promotion because of his trade union activities.

The Complainant appended a summary of his work performance and achievements since the successful outcome of his 2017 grievance.

August 24th, 2021

On August 24th, 2021, The Complainant attended a formal grievance hearing with a Senior Manager, Mr Darragh Duhy, who had been nominated Mr Brian Tapley, Regional Manager to hear his grievance.

September 10th, 2021

On September 10th, 2021, Mr Duhy issued his grievance decision.

In summary, Mr Duhy did not uphold The Complainant’s grievance. In his findings Mr Duhy acknowledged the Complainant’s high-performance ranking awarded by his supervisor but noted that a limited overall number of upgrading’s had been agreed with the ESB GoU, and that in this context 5 upgrading’s had been allocated to his area.

Albeit that The Complainant was ranked highly amongst the 40 NTs said to have been reviewed, Mr Duhy stated that “other NT staff in CD Dublin at your grade were rated and ranked higher than you and therefore were recommended for a 504 grade.”

Mr Duhy did not say how many were ranked higher than The Complainant, nor did he say if only those said to have been rated at a higher rank had been upgraded.

He did state that no formal agreement with the GoU was necessary in respect of performance criteria, but that “consultation” with the GoU had taken place in respect of “the selection process and the scoring system to be applied as part of NT portfolio reviews.”

September 22nd, 2021

In an appeal statement dated September 22nd, 2021, The Complainant submitted a formal grievance appeal in respect of Mr Duhy’s decision.

October 7th, 2021

On October 7th, 2021, The Complainant attended a grievance appeal hearing with Mr Neil      McGuinness, Senior Manager, Networks Support.

October 21st, 2021

On October 21st, Mr McGuinness issued his grievance appeal decision.

Mr McGuinness upheld the decision made by Mr Duhy and essentially issued the same findings as Mr Duhy, his management colleague.

Again, it was stated that in the review of 40 NTs in his area, despite The Complainants high rating he was rated lower than other NT colleagues. Mr McGuinness did not confirm that only NTs with a higher rating than the Complainant had received the upgrading’s available.

He restated that the performance criteria applied in the Portfolio Review was process was a matter solely for management, but also advised that the GoU had been consulted in relation to a “revision of the scoring process and selection criteria” used in previous reviews.

Again, no detail was provided.

End of Internal Grievance Process

The appeal decision by Mr McGuinness ended the internal grievance process for The Complainant.

Unlike in his 2017 grievance, The Complainant did not refer the appeal decision to the internal ESB Industrial Council.

This is because he is a member of the IWU.

Because the IWU is not a constituent member of the ESB Group of Unions, members are not permitted to access the final part of the ESB internal grievance procedure, which provides for an Industrial Council referral from a grievance appeal decision.

Complaint of Victimisation

It is submitted that The Complainant has been victimised and subjected to penalisation because of his membership of, and activities on behalf of, his trade union; the Independent Workers’ Union. The IWU is a trade union holding a licence under the Trade Union Act 1941.

However, it is not recognised by the Respondent employer, ESB Network, for the purpose of collective bargaining, accordingly it is not the practice of the Respondent to engage in collective bargaining negotiations with the IWU. This is despite the fact that the ESB Branch of the IWU is solely comprised of Network Technicians, who number more than 400, from an estimated total of 1200.

It is submitted that in allocating the available upgrading’s in his area, and specifically to his base in Finglas yard, one upgrading to Grade 504 was allocated amongst 7 NTs.

The Complainant was the ranked highest of these 7 eligible NTs but was not awarded the upgrading.

The Complainant contends and it is submitted that the manager who revised The Complainant’s performance review score downwards, Mr Eoghan Judge, had on June 9th 2021 made an accusation of intimidation against The Complainant in the context of his activities on behalf of the IWU Branch.

It is contended and submitted that apart from any other consideration The Complainant’s performance review in the 2020 Portfolio Review process was compromised by Mr Judge’s involvement.

In Summary

In summary it is submitted that in the context outlined, the Respondent is in breach of Section 8 of the Industrial Relations (Miscellaneous Provisions) Act 2004 in that The Complainant was not objectively assessed in the Portfolio Review. In effect he was denied a merited promotion because of his membership of the IWU and his activities on behalf of this licenced trade union.

Accordingly, it is submitted that The Complainant should have his complaint adjudicated as soundly based and that the remedies provided for in Section 9(5) of the 2004 should be appropriately considered and applied.

Post Hearing Supplemental Submission.

At the resumed hearing of this complaint on January 20th, 2023, the Respondent’s representative challenged the jurisdiction of the Adjudicator in the hearing of the matter of complaint i.e., the victimisation of the Complainant through the medium of denying him access to, or success in achieving, enhanced grading within the Network Technician grading portfolio.

On the evening prior to the January 20th Hearing, the Respondent’s legal representative advised that Counsel had been engaged and would submit that the Industrial Relations (Miscellaneous Provisions) Act 2004 under which the Complainant submitted his complaint “does not apply in this case in circumstances where it is the practice of ESB to engage in collective bargaining”.

Labour Court “decisions”: Tesco Ireland Limited and A Worker, VCD 172 and Bus Atha Cliath, VCD051 were cited in support of this contention.

VCD172

The first case quoted concerns the Employee’s appeal in respect of and Adjudication Officer’s decision (ADJ-00001541).

It is a fact that the Adjudication Officer rejected a complaint of victimisation in relation to an allegation by the Complainant that she was not paid in respect of a period of illness absence, because of her membership of a union not recognised for collective bargaining purposes. In the Adjudicator’s Decision dated July7th, 2016, the Respondent employer is noted in response to the complaint: “The reason the Complainant wasn’t paid while out sick was that she didn’t follow company policy regarding sickness absence. When the Complainant returned to work, her sick pay was paid to her.”.

The Adjudication Decision was based on “credible oral evidence” in respect of the substantive issue. The Adjudicator also noted that “The Respondent pointed to their long history of good relationships with Unions generally.  

No issue of jurisdiction under the 2004 Act was raised or considered.

It is unclear from the Labour Court’s determination of the Appeal how the question of jurisdiction arose in the particular context of this case. There is no specific or detailed explanation contained in the Determination.

In any event, the Labour Court merely, stated that it was “a condition precedent for the Court’s consideration” in regard to a Section 8 (2004 Act) complaint as to whether or not it was the practice of the Respondent to engage in collective bargaining negotiations.

In this context, the Court determined that the condition precedent was not met, and therefore on this basis the appeal could not succeed.

It is particularly important, in the context of the instant case, that the Court did not give any consideration to the nuanced approach to determining whether or not collective bargaining was in place per Section 2(a) of the 2004 Act.

This Section amended the original Section 2 of the Industrial Relations (Amendment) Act 2001 which introduced the “condition precedent” referred to by the Labour Court in VCD172.

The original text in Section 2 (2001 Act) referred to a situation in an employment where;

“it is not the practice of the employer to engage in collective bargaining negotiations….” per se.

The amended Section 2 (2004 Act) nuanced this condition by refining the existence of a practice of collective bargaining negotiations through a refined definition as follows;

“it is not the practice of the employer to engage in collective bargaining negotiations in respect of a grade, group, or category of workers….”

The Complainant, in the instant case is a member of a licenced trade union not currently recognised for collective bargaining negotiations. He is one of a ‘group’ of more than 350 Network Technicians within the Network Technician grade, which measures circa 1200 at present.

In the Final Stage Dail Eireann debate on the Bill that became the 2004 Act (Vol.580 No.2), the then Minister of State at the Department of Enterprise, Trade and Employment, explained the reasoning behind the amendment to Section 2 of the 2001 Act. He stated that it was to deal with a situation where “…an employer engages in collective bargaining negotiations for certain grades, groups, or categories of workers but not with others. In such cases it may be considered that the employer engaged in collective bargaining in these circumstances and certain grades, groups or categories of workers would not have recourse to the provision of the 2001 Act. To avoid any doubt I propose this amendment to Section 2.1(a) of the 2001 Act”. Clearly, the purpose was to provide for inclusion of all employees, regardless of grade, group or category, and to avoid exclusion.

It is also important to distinguish between the Complainant’s membership of the specific trade union concerned i.e. the Independent Workers’ Union (IWU) and his activities on behalf of his trade union.

In the latter regard, it should be noted that the Complainant, in refusing to adopt the MyTime App method of recording his working time, he like more than 100 other colleagues adhered to, and continues to adhere to an IWU Branch decision to request members not to use the MyTime App.

It is submitted, and is supported by testimony already heard, the Complainant’s general union activity singled him out as someone to be ‘blocked’ in his pursuit of upgrading.

There is formal evidence that non-utilisation of the MyTime App per Branch policy also militated against him and his colleagues.

VCD051

In this Determination by the Labour Court dated November 1st, 2005, the Court dealt with a worker’s appeal in respect of a Rights Commissioner’s determination that a complaint made under Section 8(1) of the 2004 Act was outside of the Rights Commissioner’s jurisdiction.

The rationale for the Commissioner’s determination can only be understood based on the fact that the Respondent employer had an established practice of collective bargaining negotiations with recognised trades unions. The Complainant was not a member of one of those Unions. The Commissioner posited that the Complainant had an opportunity to join a recognised trade union which represented his grade but chose not to, as was his right.

A consequence, per the rationale applied was that the Complainant put himself outside of the requirements of Section 8 of the 2004 Act.

The Labour Court in rejecting the Complainant’s appeal, simply endorsed the Rights Commissioner’s rationale, no expansion or explanation was set out.

Again, it is submitted, that the considered and deliberate refinement in respect of the existence of collective bargaining per the Section 2 amendment in the 2004 Act was not considered. The reason is therefore unclear. One reason may be because the Complainant was not one of a representative group within his grade or category.

In the instant case the Complainant is a member of a very significant and representative number of employees in in his grade, in common membership of the IWU.

In Summary Response

It is submitted that there is no restriction in respect of adjudication under the Section 9 (2004 Act) complaint in the instant case.

The nuanced definition of collective bargaining contained in Section 2 of the 2004 is designed specifically to give access to the protection provided in Section 8 of the Act.

It is also submitted that the adjudication should consider the distinction between simply, the Complainant’s membership of the IWU, his general and well known trade union activities, and his adherence to the IWU Branch policy in respect of the MyTime App.

Introduction

1. The Complainant has lodged a claim against the Respondent pursuant to the Industrial Relations (Miscellaneous Provisions) Act 2004.

2. The Complainant’s complaint form claims that: “I was victimized by my employer by being passed over for promotion for trade union activities and membership a few years ago, I proved my case and the decision not to promote me and increase my wages was reversed after a lengthy process. Unfortunately, the same people who put a block on me being promoted previously, now again decided that I am not entitled to be promoted despite taking on more responsibilities and receiving excellent marks from my supervisor”

3. The Respondent denies the claim.

Brief outline of relevant background

4. The Complainant commenced employment with the Respondent as a Network Technician in 2004.

 5. The Network Technician portfolio consists of the following four grade levels:

• 502 Grade

• 503 Grade

• 504 Grade

• 504 V/Y Grade (which this level being the highest).

6. In 2021, following a central level agreement between the Respondent and the Respondent’s recognised trade unions representing the Network Technician category on the roll-out of the Smart Metering programme, 150 ‘grades’ (promotional positions) were made available to Network Technicians as part of the Respondent’s portfolio review process. It was also agreed as part of the central level agreement that any Network Technicians who were not successful or ineligible for a grade in the portfolio review process would receive a one-off payment of €1,000. All eligible Network Technicians were assessed and rated against a set of defined criteria, being safety, delivering results, competence development, customer service and attendance.

7. The Complainant applied for a 504 grade. Only five 504 grades were allocated to CD Dublin, which was the area that the Complainant worked in, and 28 Network Technicians applied for these five grades. While the Complainant was rated highly in the assessment process, the Complainant was ultimately unsuccessful. The Complainant scored a total of 81 out of 100. Each Network Technician is assessed by their direct line manager (Supervisor).

Following the assessment process, the Area Manager will rank each Network Technician in the area in conjunction with the Supervisor team. Once the ranking process has concluded the Senior Manager will agree the awarding of each available grade with the Area Management team based on the rating (assessment) and ranking process. The management team will also take account of the time a Network Technician is at their current grade, relevant experience and the geographic distribution of grades in the selection process.

8. The Complaint subsequently submitted a formal grievance to the Respondent on the 9th June 2021 and the Complainant was notified by letter dated the 10th September 2021 that this grievance was not upheld. The Complainant appealed this decision and was notified by letter dated the 21st October 2021 that his appeal had been unsuccessful

9. The Respondent submits that the outcome of the portfolio review process had nothing to do with the trade union activities of any Network Technician.

10. For completeness, it should be noted that while the Complainant’s complaint form mentions being passed over for promotion “a few years ago”, the complaint which is currently before the WRC relates to the 2021 portfolio review process. Further, the Complainant asserts that he previously “proved” his case that he was not promoted on the basis of “trade union activities”. This is rejected by the Respondent. While the Complainant asserted in 2017/ 2018 that he was not promoted because of his activities in his (then) trade union, the Respondent did not accept this and while an agreement was ultimately reached through conciliation at the Respondent’s Joint Industrial Council, there was no finding of discrimination or victimisation made. For the avoidance of doubt, the Respondent confirms that the Complainant is free to engage with any trade union he wishes, and there is no “block” on the Complainant being promoted. The fact remains that while the Complainant scored highly in the promotional competition, the calibre of candidate was high and there were far more competent and qualified candidates than available grades.

Industrial Relations (Miscellaneous Provisions) Act 2004

11. The Complainant has lodged a complaint pursuant to Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004. Section 9 of the Act provides that “An employee, a trade union, an excepted body or an employer on behalf and with the consent of the employee, may present a complaint to a rights commissioner that a person has contravened section 8 in relation to the employee.” The Complainant is therefore alleging a contravention of Section 8 of the 2004 Act which prohibits victimisation and provides as follows:-

8.—(1) This section applies where it is not the practice of the employer to engage in collective bargaining and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and— (a) a trade union takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or (b) such procedures have been invoked by a trade union in relation to a trade dispute, or (c) an employee intends to request the trade union of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union intends to make such a request, or (d) such a request by a trade union has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or (e) the Court determines that those requirements have been met and either— (i) that investigation is being or has been carried out, or  (ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.

12. It is the practice of the Respondent to engage in collective bargaining. It does so with its recognised trade unions, the ESB Group of Unions (“GOU”). The Complainant is a member of the Independent Workers Union (the “IWU”) but the IWU is not a member of GOU. For reasons that have previously been made clear to that Trade Union, the Respondent does not recognise it for collective bargaining purposes. It should be noted that the Respondent is not required to engage in collective bargaining with the IWU.

13. The allegation made by the Complainant does not fall within the definition of victimisation in Section 8 of the 2004 Act or the Code of Practice. Section 8(3) provides as follows:- 8.—(3) In this section “victimise”, in relation to an employee, means to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her wellbeing and includes any act specified in a code of practice, prepared under section 42 of the Industrial Relations Act 1990 in relation to conduct prohibited by this section, to be an act falling within the foregoing expression but does not include any act constituting a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001.

14. The Industrial Relations Act 1990, Code of Practice on Victimisation (SI 463 of 2015) refers to examples of unfair or adverse treatment as follows:- ‘Examples of unfair or adverse treatment (whether acts of commission or omission) that cannot be justified on objective grounds may in the above contexts include an employee suffering any unfavourable change in his/her conditions of employment or acts that adversely affect the interest of the employee (including any adverse effect arising from the employee refusing an inducement (financial or otherwise) designed specifically to have the employee forego collective representation by a trade union); action detrimental to the interest of an employee not wishing to engage in trade union activity, or the impeding of a manager in the discharge of his/her managerial functions’

15.The fact that the Complainant was unsuccessful in his application for a grade in 2021 can be justified on objective grounds, as set out above. All Network Technicians who applied for a grade at the same time as the Complainant were treated in the same way, irrespective of union membership.

 SUPPLEMENTAL SUBMISSIONS ON BEHALF OF THE RESPONDENT

 INTRODUCTION

1. This matter concerns a complaint referred to the Workplace Relations Commission (“the WRC”) by Stephen Darling (“the Complainant”) against his employer, the Electricity Supply Board (“the Respondent”), under the Industrial Relations (Miscellaneous Provisions) Act 2004 (“the 2004 Act”) alleging he was victimised pursuant to s. 8 of the 2004 Act by being passed over for promotion on account of his trade union membership and/or for engaging in trade union activities. In his submissions, the Complainant’s case was premised on his alleged victimisation for membership of, and engaging in trade union activities for, the Independent Workers Union (“the IWU”). At the second day of hearing however, this position was stated to also include engaging in “general” trade union activities.

2. The case has been before the WRC for two days of hearing as took place on 22nd November 2022 and 20th January 2023.

3. At the second day of hearing, on behalf of the Respondent, a preliminary objection was raised to the effect that the Complainant’s claim was misconceived on the basis that the Complainant was not entitled to invoke s.8 of the 2004 Act in circumstances where the Labour Court has held it is a condition precedent for consideration of a complaint under s.8 that it is not the practice of the employer to engage in collective bargaining.

4. It is not in dispute that the Respondent does in fact engage in collective bargaining.

5. A further issue was raised on behalf of the Respondent to the effect that the specific subsection of s.8 of the 2004 Act being relied upon by the Complainant had not been identified and therefore remained unclear.

6. At the conclusion of the second day of hearing, the Adjudication Officer requested that the Complainant’s representative furnish written submissions within three weeks on the preliminary objection raised on the non-applicability of the 2004 Act and on identifying the specific subsection within s.8 of the 2004 Act being relied upon. The Respondent was to be afforded three weeks to reply. The Adjudication Officer confirmed that the matter would be dealt with as a preliminary matter and, if decided in favour of the Respondent, a final decision would issue concluding the complaint was not well-founded whereas if decided in favour of the Complainant, the parties would be notified accordingly, and a further day of hearing would be scheduled.

7. Submissions on behalf of the Complainant were furnished on 12th February 2023 and the Respondent’s submissions in response are set out below.

THE RESPONDENT’S RESPONSE

Relevant Legislative Framework

8. A revised version of the 2004 Act updated to 1st February 2020 as prepared by the Law Reform Commission confirms that s.8 of the 2004 Act provides as follows:

“8.— (1) This section applies where it is not the practice of the employer to engage in collective bargaining and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and—

(a) a trade union takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or

(b) such procedures have been invoked by a trade union in relation to a trade dispute, or

(c) an employee intends to request the trade union of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union intends to make such a request, or

(d) such a request by a trade union has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or

(e) the Court determines that those requirements have been met and either—

(i) that investigation is being or has been carried out, or

(ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.

(2) Where this section applies, none of the following—

(a) the employer,

(b) an employee, or  

(c) a trade union of which an employee is a member,  

shall victimise an employee or (as the case may be) another employee in the employment concerned on account of—

(i) the employee’s being or not being a member of a trade union, or

(ii) the employee’s engaging or not engaging in any activities on behalf of a trade union.

(3) In this section ‘victimise’, in relation to an employee, means to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her wellbeing and includes any act specified in a code of practice, prepared under section 42 of the Industrial Relations Act 1990 in relation to conduct prohibited by this section, to be an act falling within the foregoing expression but does not include any act constituting a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001.

(4) For the avoidance of doubt, ‘employee’ in this section includes any person in the employment concerned the duties of whom consist of or include managing the business or activity to which the employment relates.

(5) In this section, ‘collective bargaining’ has the meaning assigned to it by section 1A of the Act of 2001 and that section shall apply to this section in the same manner as it applies to that Act.”

(Emphasis added).

9. Section 8(1), as quoted above, confirms that s.8 only applies where it is not the practice of the employer to engage in collective bargaining.

10. Section 8(5), as quoted above, which was inserted by the Industrial Relations (Amendment) Act 2015, confirms that for the purposes of s.8, the term “collective bargaining” has the meaning assigned to it by s.1A of the Industrial Relations (Amendment) Act of 2001 (“the 2001 Act”).

11. Section 1A of the 2001 Act, which was also inserted by the Industrial Relations (Amendment) Act 2015, in turn defines collective bargaining as follows:

“1A. For the purposes of this Act, ‘collective bargaining’ comprises voluntary engagements or negotiations between any employer or employers’ organisation on the one hand and a trade union of workers or excepted body to which this Act applies on the other, with the object of reaching agreement regarding working conditions or terms of employment, or non-employment, of workers.”

12. Significantly, the above definition of collective bargaining contains no reference to collective bargaining in respect to a grade, group or category of workers. Whatever ambiguity might have existed in respect to the precise definition of collective bargaining prior to the amendment brought about by the Industrial Relations (Amendment) Act 2015, it is clear that since 2015 onwards, the definition for both the 2001 Act and s.8 of the 2004 Act has been that as contained in s.1A of the 2001 Act which makes no reference to “a grade, group, or category of workers” within the definition.

13. On the other hand, s.2(1)(a) of the 2001 Act, as substituted by s.2 of the 2004 Act, (and as referred to in the Complainant’s submissions) does make such reference in that it provides as follows:

“2.— (1) Notwithstanding anything contained in the Industrial Relations Acts, 1946 to 1990, at the request of a trade union, the Court may, subject to this Act, investigate a trade dispute where the Court is satisfied that—  

(a)    it is not the practice of the employer to engage in collective bargaining in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute,

(b) either—

(i) the employer has failed to observe—

(I) a provision of the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 specifying the period of time for the doing of anything (or such a provision of any code of practice amending or replacing that code), or

(II) any agreement by the parties extending that period of time,

or

(ii) the dispute having been referred to the Commission for resolution in accordance with the provisions of such code, no further efforts on the part of the Commission will, in the opinion of the Commission, advance the resolution of the dispute and the Court has received a report from the Commission to that effect,

(c) the trade union or the employees, as the case may be, have not acted in a manner which, in the opinion of the Court, has frustrated the employer in observing a provision of such code of practice, and  

(d) the trade union or the employees, as the case may be, have not had recourse to industrial action after the dispute in question was referred to the Commission in accordance with the provisions of such code of practice.”

(Emphasis added)

14. Firstly, it is important to note however that s. 2 of the 2001 Act is headed “Investigation of dispute by Court” and the section deals only with the investigation of trade disputes by the Labour Court which is of no relevance or application to the matter herein.

15. Secondly, as can be seen from the above, s.1(A) of the 2001 Act expressly states that the definition of collective bargaining contained therein applies for the purposes of the 2001 Act. Similarly, s.8(5) of the 2004 Act expressly states that the definition of collective bargaining for s.8 is also the definition contained at s.1A of the 2001 Act. Contrary to the position advanced on behalf of the Complainant therefore, s.2(1)(a) of the 2001 Act does not provide a definition of “collective bargaining” for the purposes of either the 2001 Act or s.8 of the 2004 Act. As stated, the definition of collective bargaining for both the 2001 Act and s.8 of the 2004 Act is that contained at s.1A of the 2001 Act (and as quoted above).

16. In fact, s.2(1)(a) of the 2001 Act does not contain a “definition” of collective bargaining at all (as this is contained at s.1A of the 2001 Act). Rather s. 2(1)(a) of the 2001 Act sets out one of the conditions that must be met prior to the Labour Court exercising its discretion to investigate a trade dispute as provided for at s.2 of the 2001 Act. It is limited in application to this purpose. The other criteria to be met are set out in s.2(1)(b) to (1)(d) of the 2001 Act. It is stated in the Complainant’s supplemental submissions that s.2(1)(a) “nuanced” the definition of collective bargaining applying to s.8 of the 2004 Act. This is not correct. Section 2(1)(a) of the 2001 Act only nuanced the definition of the term “collective bargaining” is so far as s.2(1)(a) is concerned – which is only concerned with the investigation of trade disputes by the Labour Court. The nuanced definition of the term in s.2(1)(a) however has no bearing on the within case.

17. Section 2(1)(a) of the 2001 Act therefore is not relevant to the within case before the WRC and the reference to collective bargaining contained therein is not applicable.

Relevant Case Law

18. In support of the Respondent’s position, reliance is placed on the 2017 Labour Court decision in Tesco Ireland Limited v. A Worker VCD172. Here, the Labour Court was dealing with an appeal by an employee against a decision of an Adjudication Officer in a claim of victimisation pursuant to the 2004 Act – i.e., precisely the same claim as is being made herein. The Labour Court quoted s.8(1) of the 2004 Act and then in unequivocal terms held:

“It is common case that it is the practice of the Respondent to engage in collective bargaining.

Decision of the Court

It is a condition precedent for the Court’s consideration of a complaint made under the Act at section 8 that ‘…it is not the practice of the employer to engage in collective bargaining negotiations…’

It is clear that this condition is not met in the within matter and the appeal cannot therefore succeed.”

19. This dicta is clearly dispositive of the matter at issue and is binding authority in this case. The submissions made on behalf of the Complainant to the effect that there is some lack of clarity regarding how the question of jurisdiction arose in the Labour Court is rejected. It is apparent from the decision that the issue arose as a jurisdictional matter and that therefore the Labour Court was obliged to address it prior to considering the merits of the complaint. Without jurisdiction to hear the complaint, that Labour Court could not inquire into its substance. It was on this basis that the issue arose to be determined by the Labour Court. The argument made on behalf of the Complainant to the effect that the Labour Court “did not give any consideration to the nuanced approach to determining whether or not collective bargaining was in place per Section 2(a) of the 2004 Act” is, with respect, unfounded.

20. The Respondent is also relying on the 2005 Labour Court decision in Bus Atha Cliath v. Carroll VCD051 (decided prior to the amendment made to s. 8 of the 2004 Act by the Industrial Relations (Amendment) Act 2015) which similarly addressed an appeal by an employee against a decision of the Adjudication Officer in a claim of victimisation pursuant to the 2004 Act where the rights commissioner had found that there was no jurisdiction to hear the claim. The Labour Court confirmed that the decision of the rights commissioner was correct for the reasons relied upon by the rights commissioner. In the decision, the rights commissioner gave as the rationale the following:

“While Dublin Bus does not engage in collective bargaining negotiations with the Independent Workers Union, it does engage in collective-bargaining negotiations with SIPTU and the NBRU and Mr Carroll is free to be represented by either of these two Trade Unions that are recognised by the Company.

It is common practice in unionised companies for agreements to be in place that restrict Trade Union recognition and bargaining rights to a specific Trade Union or Unions. While I accept that an employee may choose not to be a member of a specific Trade Union, if he/she choose (sic) to disassociate themselves from Trade Union(s) recognised by the Company as having negotiating rights for their grade or category, then, I believe that he/she is prohibited from bringing a complaint under the Industrial Relations (Miscellaneous Provisions) Act, 2004.”

21. The rights commissioner also addressed the argument made to the effect that the amendment to s.2 of the 2001 Act (brought about by s.2 of the 2004 Act) covered a situation where an employer engages in collective bargaining negotiations for certain grades, groups or categories of workers but not with others (as likewise being advanced on behalf of the Complainant in the within case). Two points can be made in respect to this.

22. Firstly, Bus Atha Cliath was decided in 2005, therefore before s.8(5) was inserted by the Industrial Relations (Amendment) Act 2015, which section provided that for the purposes of s.8, the term “collective bargaining” has the meaning assigned to it by s.1A of the 2001 Act and which defines collective bargaining without any reference to grades, groups or categories of workers. Therefore, the comments made by the rights commissioner in Bus Atha Cliath have been overtaken by the amendment of s.8 of the 2004 Act.

23. Secondly, even if the definition of collective bargaining for the purposes of s.8 of the 2004 Act were as contended for on behalf of the Complainant (and this is rejected) it would still not assist the Complainant in seeking to rely on s.8. In Bus Atha Cliath, the rights commissioner specifically addressed this issue (contrary to what is stated in the submissions on behalf of the Complainant to the effect that the amendment to s.2 of the 2001 Act was not considered) and stated as follows:

“While I agree with this interpretation, I do not accept that it applies to Mr Carroll’s circumstances as a member of a Trade Union that is not recognised by his employer. His grade/category (i.e. bus driver) is represented by two Trade Unions that are recognised by his employer Bus Atha Cliath, and these Trade Unions engage in collective bargaining with Bus Atha Cliath on behalf of bus drivers.”

24. The same reasoning applies in the within case. Network Technicians, being the relevant group, grade or category of workers to which the Complainant belongs, are represented by several trade unions in the Group of Unions as recognised by the Respondent with which the Respondent engages in collective bargaining. Even if the definition of collective bargaining required the identification of a group (and this is rejected) the Respondent would still be entitled to rely on the jurisdictional point as the relevant group, Network Technicians, are in fact represented by several trade unions within the Group of Unions with which the Respondent engages in collective bargaining.

25. The Complainant has attempted however to identify a “group” as comprising members of a trade union, (i.e. the IWU) as opposed to being a group, grade or category of workers – clearly being Network Technicians in this case. This has no basis and notably no case law in support of this argument has been relied upon on behalf of the Complainant. The group, grade or category of workers could not refer to a minority of Network Technicians who choose not to be members of the unions within the Group of Unions. This would be completely contrary to the terms of s.8 of the 2004 Act. It would also go against the Labour Court decision in Bus Atha Cliath which prohibited a bus driver, being a member of the IWU, to pursue his claim on the basis that the employer engaged in collective bargaining with two other unions that represented bus drivers. These facts are effectively mirrored in the within case. The interpretation being advanced on behalf of the Complainant would completely undermine the operation of s.8 and would be contrary to the decisions of the Labour Court in both Tesco and Bus Atha Cliath.

Section 8 of the 2004 Act

26. In addition to the foregoing, notably the Complainant’s submissions make no effort to identify the subsection of s.8 of the 2004 Act that is being relied upon by the Complainant in this case. It is the Respondent’s position that even if the Complainant got over the jurisdictional issue, (which is not accepted) that his complaint does not come within any of the subsections in s.8 as the subsections are premised on the procedures under the Code of Practice on Voluntary Dispute Resolution under s.42 of the Industrial Relations Act 1990 in relation to a trade dispute being or having been invoked. This precondition to the reliance on s.8 of the 2004 Act has not been met or even remotely addressed on behalf of the Complainant in this case.

MyTime App

27. Finally, it is noted that the Complainant’s supplementary submissions make reference to the IWU branch decision to request members not to use the MyTime App and state: “There is formal evidence that non-utilisation of the MyTime App per Branch policy also militated against him and his colleagues.” It is not clear why these submissions were included in the supplemental submissions on the jurisdictional issue but to be clear, it is rejected by the Respondent that any such evidence regarding the MyTime App has been adduced at the hearing to date.

CONCLUSION

28. Based on the foregoing, it is apparent that the Complainant’s complaint of victimisation under the 2004 Act is entirely misconceived in that:

a. Firstly, the Respondent does engage in collective bargaining and the Labour Court has unambiguously held that this is a matter that deprives the Adjudication Officer of jurisdiction to hear a complaint of victimisation pursuant to s. 8 of the 2004 Act.

b. Secondly, even based on the Complainant’s understanding of the definition of collective bargaining (which definition is rejected) the Respondent still engages in collective bargaining regarding the group, grade or category of workers of which the Complainant is a member, i.e. Network Technicians, represented by the Group of Unions with which the Respondent engages in collectively bargaining.

c. Thirdly, notwithstanding the jurisdictional issue, it is also apparent that s.8 of the 2004 Act does not cover the complaint made herein as there was never any step taken or intended to be taken to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under s.42 of the Industrial Relations Act 1990 in relation to a trade dispute.

29.The Complainant’s complaint therefore should be dismissed.

30.The Respondent reserves the right to make further and/or other submissions including oral submissions and to call evidence as appropriate to deal with the facts and submissions on the law as may be asserted by the Complainant or such evidence or submissions that may be adduced by him during any further hearing of this matter.

The Legislation

Section 9(1) of the Industrial Relations (Miscellaneous Provisions) Act, 2004 provides: -

An employee, a trade union, an excepted body or an employer on behalf and with the consent of the employee, may present a complaint to a rights commissioner that a person has contravened section 8 in relation to the employee.

Section 8 of the Industrial Relations (Miscellaneous Provisions) Act, 2004 provides: -

(1) This section applies where it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and—

(a) a trade union or an excepted body takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or

(b) such procedures have been invoked by a trade union or excepted body in relation to a trade dispute, or

(c) an employee intends to request the trade union or excepted body of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union or an excepted body intends to make such a request, or

(d) such a request by a trade union or an excepted body has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or

(e) the Court determines that those requirements have been met and either—

(i) that investigation is being or has been carried out, or

(ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.

(2) Where this section applies, none of the following—

(a) the employer,

(b) an employee, or

(c) a trade union or an excepted body of which an employee is a member, shall victimise an employee or (as the case may be) another employee in the employment concerned on account of— (i) the employee's being or not being a member of a trade union or an excepted body, or

(ii) the employee's engaging or not engaging in any activities on behalf of a trade union or an excepted body.

(3) In this section “victimise”, in relation to an employee, means to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her wellbeing and includes any act specified in a code of practice, prepared under section 42 of the Industrial Relations Act 1990 in relation to conduct prohibited by this section, to be an act falling within the foregoing expression but does not include any act constituting a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001.

(4) For the avoidance of doubt, “employee” in this section includes any person in the employment concerned the duties of whom consist of or include managing the business or activity to which the employment relates.

Respondents Position

The Respondent’s position is that it acted fairly and reasonably at all times.

In Waterford County Council and A Group of Workers LCR 20726, The Labour Court stated:

‘’Unlike all other cases in which the Court has recommended that a trade union be recognised for industrial relations purposes, the employer in this case has in place well established arrangements for the conduct of collective bargaining with authorised trade unions. The applicants in this case are, in effect, a break-away group who are seeking to establish negotiating rights with the employer through the convenience of another trade union that has no recognised involvement in negotiations with Local Authorities.

While the applicants have an acknowledged right to be members of whatever organisation they choose, the exercise of that right cannot, in the circumstances of the present case, imply a concomitant obligation on the employer to negotiate with their chosen organisation. In the Court’s opinion, recognition of this group would have a highly undesirable destabilising effect on the established negotiating arrangements currently in place. It would also greatly impair the orderly conduct of industrial relations within the Local Authority sector. On that account, it would be irresponsible for the City Council to accede to the applicants request for recognition. For these reasons the Court does not recommend concession of the workers’ claim.’’

In the instant complaint the Respondent has arrangements and agreements in place with a recognised group of unions.

For obvious reasons I must find that this complaint as presented is not well founded.

Please see above.