LCR22424

1.Collective Agreement Interpretation

BACKGROUND:

2.The matter before the Court relates to a 2013 collective agreement, the Court has been requested to issue a Recommendation interpreting the 2013 agreement.

UNIONS ARGUMENTS:


3. 1. The Union claims that the employer is not honouring the collective agreement of 2013.

2. The Union's interpretation of the 2013 agreement is that permanency is triggered after 2 years.


EMPLOYER'S ARGUMENTS:

• 
  1. The Employer is of the understanding the 2013 Fixed Term Worker agreement is being adhered to.
  
  2. The employer maintains that the 2013 agreement does not give automatic right to permanency- instead 2 years service triggers a consideration for permanency.

“A two year trigger for permanency will apply to all current and new fixed term employees”

The dispute which arose in 2020 has been resolved. The resolution of the dispute, in summary, provided that five fixed term employees were made permanent after two years’ service notwithstanding that there was no work available in the employment for them. Each of the five were made redundant shortly after appointment as permanent employees on the payment of €20,000 to each. Separately, one of the five was subsequently appointed on a permanent basis to fill a vacancy and he or she returned the sum of €20,000 which had been paid to him.

The current dispute before the Court does not relate to any live matter or individual and any Recommendation made by the Court will have no immediate application.

The Trade Union position before the Court is that the 2013 agreement should be interpreted so as to mean that where a fixed term employee reaches two years’ service, including in circumstances where there is no work available for the employee, he or she should automatically be appointed to a permanent position. Where no work is available to the employee, a voluntary severance programme should be put in place in accordance with a 2009 agreement which provides that where there is an excess of volunteers for redundancy over the number of redundancies sought, the most senior applicant is afforded voluntary severance. In the case of the 2020 dispute, the Trade Union submitted that the employer should have appointed the five fixed term workers as permanent employees and made five voluntary redundancies available to the five most senior applicants.

The employer position is that the 2013 agreement does not give an automatic right to permanency and, instead, the achievement of two years’ service as a fixed term employee triggers a consideration for permanency. The employer proposed an addendum to the 2013 agreement which would provide that where work is not available at the point an employee reaches two years’ service, the fixed term employment could be extended for a period of no longer than two months. At the end of the fixed term employment the person would be placed on a recall list and where work becomes available would be appointed on a permanent contract. Where work is available at the point a person achieves two years’ service the person would be employed on a permanent contract. However, permanency would be withheld for as long as there are significant performance or disciplinary with the employee especially in relation to absenteeism, the existence of a live disciplinary sanction or an active disciplinary investigation.

The Court is concerned that any Recommendation it would issue at this time in relation to this matter, having regard to the key matters at issue in the dispute and the fact that no current or prospective difficulty as regards the application of the 2013 agreement arises, could lead to disagreement is an abstract context. The Court’s concern reflects the reality that no difficulty of interpretation of the agreement arose in the seven years from 2013 to 2020.

The parties are now aware of the difference of interpretation which lies between them and, in the view of the Court, any difficulty will only arise in a situation when a real prospect of application of the agreement where no work is available to a fixed term employee coming to the end of two years’ service. In any such circumstance, the Court is aware that the parties have agreed robust dispute resolution procedures and these procedures would have effect in any such eventuality.

In those circumstances, and having regard to (a) the fact that the 2020 dispute has been resolved and (b) the employer has highlighted what it sees as real challenges to the site, including challenges leading to loss of employment in 2021; the Court Recommends that the parties suspend disputation in relation to this matter on the understanding that, should an issue arise where any difference of interpretation has to be resolved in order to manage a real issue in being or in prospect, the agreed procedures, up to and including a referral to the Court if necessary, should be utilised in good time so as to achieve a shared interpretation of the 2013 agreement.

The Court so recommends.

	Signed on behalf of the Labour Court
	Kevin Foley
SOC	______________________
2 July 2021	Chairman