RECOMMENDATION NO. LCR17343
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
DUBLIN CITY UNIVERSITY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Restoration of normal working practice.
2. The dispute before the Court concerns the Union's claim that the University has failed to utilise the 1985 Comprehensive Agreement as the normal means of addressing issues with all SIPTU members of staff and is dealing with grievances through the Statute adopted under the Universities Act, 1997. The Union contends that the University is in breach of the Act and that the Statute was enacted without Union agreement. The Union claims that the Comprehensive Agreement is the only agreed industrial relations document which can be used to regulate the employment relationship in the University. The University rejected the claim stating that the Statute superseded the Comprehensive Agreement and that it sought Union agreement on the adoption of the Statute throughout 2000 without success. In February, 2001, the University formally adopted the Statute. Further meetings were held in an effort to reach agreement on the wording of the Statute without success.
The Union sought to refer the issue to the Conciliation Service of the Labour Relations Commission but the University was not agreeable to such a referral. Subsequently the Union referred the dispute to the Labour Court under Section 20 (1) of the Industrial Act, 1969 and agreed to be bound by the Court's recommendation. A Court hearing was held on the 12th November, 2002.
UNION'S ARGUMENTS :
3. 1. The Union accepts that the Universities Act,1997 transposed into law and placed an obligation on Universities to introduce certain Statutes to regulate certain aspects of the employment of staff, including a Statute dealing with Disputes Resolution, and a separate Statute to regulate the suspension and dismissal of employees. However, the Union position is that the comprehensive agreement, in position since 1985, should be used as the foundation for any such statute regulating the employment of staff. If necessary it was agreeable to review the current agreement with the aspiration of its use as the basis for the Statute.
2. It is the Union’s contention that the comprehensive agreement made in 1985 is the only agreed industrial relations document that can be used to regulate the employment relations within DCU.
3. The Union is further concerned that it would appear from the handling of this issue that management has as an objective to reduce the influence of the Union and to limit its ability to directly represent members. It argued that if this was to occur then recognition of the Union and the negotiating procedures would be profoundly damaged, and the normal industrial relations process seriously undermined.
UNIVERSITY'S ARGUMENTS :
4. 1. The University case is that it was required under the terms of the Universities Act, 1997 to draw up an appropriate disciplinary statute in order to deal with the suspension or dismissal of an employee.
2. The Universities Act, 1997 empowers a University to suspend or dismiss any employee but only in accordance with procedures, and subject to any conditions, specified in a statute. The University has, therefore, carried out its legislative obligations in establishing such statute.
3. Such statute has been established in accordance with legal advice which confirms that what is established is required to cover the University’s obligations both at Common Law and Statute for the purpose of dismissal.
4. The legal advice also confirms that the previous disciplinary procedure incorporated in the 1985 Industrial Relations Procedures Agreement would not be so effective both at Common Law and Statute for the purpose of dismissal.
5. The University argues that the statute could not be regarded as aggressive nor does it go unreasonably beyond the previous industrial relations procedures.
6. It was further argued that management had consulted the Union over the period of a year in keeping the provisions of the Act but failed to reach agreement. The governing authority of the University has provided every opportunity to the Union to engage in positive discussion but that under no circumstances could complete re-write of the statute be considered, which is what the Union sought.
The employer argues that legal advice is such that there is a requirement that the statute be worded as written.
While there may be difficulties for the Union in moving from the 1985 agreement, the situation is exacerbated by the disciplinary case in the background, and the effect that any change might have on that particular case. The Court has made it clear that it is not dealing with issues involved in that case.
It is clear that under the 1997 Act there are obligations on the University and this seems to be accepted by both parties. However there is a difference of opinion as to whether the statute as produced by the management, and perceived by the Union as draconian, is the only way to meet the requirements to protect the University. The Union argues that the 1985 comprehensive agreement should form the basis of the statute.
The Union side raised concerns in relation to its representation rights and at attempts to erode its involvement in representing its members. During the hearing it was clarified by Management that this was not an objective and suggestions were put by the Court to both sides to address this perception.
The Court accepts that the 1985 agreement does not meet the requirements of the University, as recommended by their legal advisors. It is also the Court’s view that representation rights as enjoyed by the members of the Trade Union, have to be protected.
Both parties have taken rigid positions with the Union insisting that the 1985 agreement must form the basis of any new statute, and the management arguing that while there can be modifications, the statute cannot be rewritten.
The Court recommends that the Union accept that the 1985 agreement cannot be the basis of going forward and that Management accept that there are concerns in relation to the statute as written, and therefore modifications are required.
The Court further recommends that the parties enter into discussions on this basis with a view to reaching an acceptable resolution of this dispute. In order to facilitate this process the Court suggests that the parties use a facilitator and recommends that discussions be completed within two months from date of the Recommendation.
Signed on behalf of the Labour Court
6th December, 2002 ______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.