Procedures of the Labour Court for cases under the Industrial Relations (Amendment) Act, Guidelines for Trade Unions and Employers

Transcription

1 Procedures of the Labour Court for cases under the Industrial Relations (Amendment) Act, 2001 [as amended in the light of the Industrial Relations (Miscellaneous Provisions) Act, 2004] Guidelines for Trade Unions and Employers June, 2004

2 CONTENTS Page 1. Introduction Time-frame for dealing with Referrals 4 3. Application for Labour Court Investigation 5 4. Preliminary Hearing 5 5. Investigation and Issuing of Recommendation Issuing of Determination 6 7. Effect of Industrial Action 6 8. Enforcement of Determination Transitional Provision Victimisation Further Information 7 Annex 1: Enhanced Code of Practice on Voluntary Dispute Resolution.. 8 Annex 2: Application form to Labour Court to investigate dispute.. 13 Annex 3: Confirmation form (from employer) that information is correct 17 2

3 1. INTRODUCTION 1.1 The Industrial Relations (Amendment) Act, 2001 provided a procedure for resolving disputes where negotiating arrangements are not in place and the parties are not engaged in talks. That Act was amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004, which came into operation on 6 th April, This leaflet sets out the procedures which the Labour Court has in place for dealing with disputes referred to the Court under the 2001 Act as amended by the 2004 Act. 1.2 The Labour Court may investigate such disputes, but only where certain statutory pre-conditions have been met. These are that the Court is satisfied that (i) (ii) it is not the practice of the employer to engage in collective bargaining negotiations 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; either the employer has failed to observe - a provision of the Code of Practice on Voluntary Dispute Resolution, specifying the period of time for doing anything, or - any agreement extending that period, or the dispute has been referred to the Labour Relations Commission for resolution in accordance with the Code of Practice and the Commission has sent to the Court a report to the effect that that no further efforts on the part of the Commission will, in its opinion, advance the resolution of the dispute; (iii) the trade union or excepted body* or employees concerned have not acted in a manner which, in the opinion of the Court, has frustrated the employer in observing a provision of the Code of Practice on Voluntary Dispute Resolution; and * Excepted body means an excepted body within the meaning of section 6 of the Trade Union Act, 1941, as amended by the Trade Union Act,

4 (iv) the trade union or excepted body or employees concerned have not had recourse to industrial action after the dispute was referred to the Labour Relations Commission in accordance with the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. No. 76 of 2004) 1.3 The Enhanced Code of Practice on Voluntary Dispute Resolution is at Annex 1 to these Guidelines. 1.4 The Code provides that where negotiating arrangements are not in place and where collective bargaining fails to take place, the matter should be referred to the Labour Relations Commission who will then appoint an officer from its Advisory Service to work with the parties in attempting to resolve the issues in dispute. Information on this stage of the process is available from the Advisory Services Division of the Labour Relations Commission at Tom Johnson House, Haddington Road, Dublin 4 Tel TIME-FRAME FOR DEALING WITH REFERRALS The legislation requires that priority be given to cases under the 2001 Act over other business of the Labour Court. The Code of Practice mentioned above sets down an indicative time-frame for processing such cases and, to enable the Court to comply with its obligations, it will act in accordance with the time table set out below. N.B. The timeframes set out will be strictly observed and the cooperation of other parties in this regard is therefore essential. The timeframe to be followed by the Court is as follows: (i) as soon as may be following receipt of a referral, the Court will notify the parties of a date for a hearing. The hearing date will normally be between four and six weeks from the receipt of the referral; [4-6 weeks] (ii) the Court will issue its Recommendation within three weeks of the hearing; [3 weeks] (iii) a request for a Determination of the Recommendation should be lodged with the Court within four weeks of the issue of the Recommendation; [4 weeks] (iv) as soon as may be following receipt of a request for a Determination, the Court will notify the parties of a date for a 4

5 hearing. The hearing date will normally be between two and four weeks from the receipt of the request; [2-4 weeks] (v) the Court will issue its Determination within three weeks of the hearing. [ 3 weeks] 3. APPLICATION FOR LABOUR COURT INVESTIGATION 3.1 The Trade Union completes the application form in Annex 2 to these Guidelines and sends it to the Programming Unit of the Labour Court, Tom Johnson House, Haddington Road, Dublin 4. To allow the Court to expedite the processing of the application, it is essential that the form be completed in full, including the questionnaire establishing that the statutory pre-conditions have been met. This application form is also available from the Offices of the Court and on the Court s website In any case in which the Court has received from the Labour Relations Commission a report as provided for in subparagraph (ii) of the preconditions set out in paragraph 1 above, the Trade Union is requested to complete an application form and to return it to the Court within seven working days. 3.2 The Labour Court then copies the completed form to the Employer and asks the Employer to confirm, on the form set out in Annex 3, within seven working days, that the information furnished by the Union is correct. In the absence of a reply from the Employer within that period, the Court will assume that the Employer does not dispute the accuracy of the information provided by the Union. 3.3 Both the Union and the Employer will be requested to lodge with the Court six copies of a statement outlining the case which they intend to make at the hearing. This Statement should include all relevant information and be delivered to the Court s offices at least five working days before the hearing. 4. PRELIMINARY HEARING If there is a difference of opinion between the Union and the Employer as to whether the statutory pre-conditions have been met, the Labour Court may conduct a preliminary hearing to satisfy itself that those conditions have, in fact, been met. It is open to the Court to combine such preliminary hearing with the Court s investigation of the issue(s). 5

6 5. INVESTIGATION AND ISSUING OF RECOMMENDATION When the Court is satisfied that the conditions have been met, the Court will conduct an investigation of the issue(s). Following the investigation, the Court will issue its Recommendation for the resolution of the issues in dispute (note: the Court is not permitted to recommend that a Union be recognised for the purposes of collective bargaining). 6. ISSUING OF DETERMINATION 6.1 Where the dispute remains unresolved after the issue of the Court s Recommendation, the Union may apply to the Court for a Determination. Before making such Determination, the Court will hold a hearing at which all relevant matters will be reviewed. 6.2 Where the Court decides to make a Determination, such Determination will be in writing and will specify the reasons for the Determination. The Court will specify in the Determination the date from which it will take effect; the effective date may pre-date the date of the Determination. 6.3 A Determination must be in the same terms as the Recommendation except where (i) (ii) the Court has agreed a variation with the parties, or the Court has decided that the Recommendation was based on unsound or incomplete information. 7. EFFECT OF INDUSTRIAL ACTION 7.1 If, during the course of an investigation by the Court, the Court has satisfied itself that industrial action in relation to the dispute has taken place, the Court shall cease its investigation and withdraw any Recommendation made. 7.2 If, having regard to all the circumstances, a Trade Union or excepted body satisfies the Court that it is reasonable to proceed with its investigation, the Court shall then proceed with the investigation. 6

7 8. ENFORCEMENT OF DETERMINATION Where an employer fails to comply with the terms of a Determination within the period specified in the Determination (or if no such period is specified, as soon as may be after the Determination is communicated to the parties), the Union may apply to the Circuit Court for an order directing the employer to carry out the terms of the Determination. 9. TRANSITIONAL PROVISION Section 5 of the Industrial Relations (Miscellaneous Provisions) Act 2004 contains provision for dealing with a request for an investigation under the Industrial Relations (Amendment) Act, 2001 made before the Commencement of the 2004 Act (6 th April, 2004). Such a request will, as regards the substance of the request, be dealt with under the 2001 Act but, as regards the procedure to be followed, be dealt with under the 2004 Act. 10. VICTIMISATION The Industrial Relations (Miscellaneous Provisions) Act, 2004 included provisions for dealing with a complaint of victimisation of an employee in circumstances set out in the Act. A complaint under those provisions must be made, in the first instance, to a rights commissioner, and a party concerned may appeal the decision of the rights commissioner to the Labour Court. 11. FURTHER INFORMATION Further information is available from:- Legislation and Information Section The Labour Court Tom Johnson House Haddington Road Dublin 4 Phone: (01) Fax: (01) info@labourcourt.ie The Labour Court website is at 7

8 ANNEX 1 Enhanced Code of Practice on Voluntary Dispute Resolution 8

9 ENHANCED CODE OF PRACTICE: VOLUNTARY DISPUTE RESOLUTION S.I. No. 76 of 2004 Industrial Relations Act 1990 (Enhanced Code of Practice on Voluntary Dispute Resolution) (Declaration) Order 2004 WHEREAS the Labour Relations Commission has prepared under subsection (1) of section 42 of the Industrial Relations Act 1990 (No. 19 of 1990), a draft enhanced code of practice on voluntary dispute resolution where negotiation arrangements are not in place and where collective bargaining does not take place; AND WHEREAS the Labour Relations Commission has complied with subsection (2) of that section and has submitted the draft enhanced code of practice to the Minister for Enterprise, Trade and Employment; NOW THEREFORE, I, Frank Fahey, Minister of State at the Department of Enterprise, Trade and Employment, in exercise of the powers conferred on me by subsection (3) of that section, the Labour (Transfer of Departmental Administration and Ministerial Functions) Order 1993 (S.I. No. 18 of 1993) (as adapted by the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order 1997 (S.I. No. 305 of 1997)), and the Enterprise, Trade and Employment (Delegation of Ministerial Functions) Order 2003 (S.I. No. 156 of 2003), hereby order as follows: 1. This Order may be cited as the Industrial Relations Act 1990 (Enhanced Code of Practice on Voluntary Dispute Resolution) (Declaration) Order It is declared that the enhanced code of practice set out in the Schedule to this Order shall be a code of practice for the purposes of the Industrial Relations Act 1990 (No. 19 of 1990). 3. The Industrial Relations Act 1990 (Code of Practice on Voluntary Dispute Resolution) (Declaration) Order 2000 (S.I. No. 145 of 2000) is revoked. SCHEDULE 1 - INTRODUCTION 1. Section 42 of the Industrial Relations Act 1990 provides for the preparation of draft Codes of Practice by the Labour Relations Commission for submission to the Minister, and for the making by him or her of an order declaring that a draft Code of Practice received by him or her under Section 42 and scheduled to the order shall be a Code of Practice for the purpose of the said Act. 2. Paragraph 9.22 of Partnership 2000 for Inclusion, Employment and Competitiveness established a High Level Group on Trade Union Recognition. The High Level Group, involving the Departments of the Taoiseach, Finance and Enterprise, Trade and Employment, the Irish Congress of Trade Unions (ICTU), the Irish Business and Employers Confederation (IBEC) and IDA - Ireland, considered proposals submitted by the ICTU on the Recognition of Unions and the Right to Bargain and took account of European developments and the detailed position of IBEC on the impact of the ICTU proposals. As a result of these deliberations a set of procedures were put in place in the Code of Practice on Voluntary Dispute Resolution (S.I. No. 145 of 2000) and the Industrial Relations (Amendment) Act

10 3. Article 8.9 of Sustaining Progress Social Partnership Agreement provides for the further development of employee representation. It was agreed by the trade union and employer organisations that there was a need to enhance the effectiveness of the existing procedures put in place in the Code of Practice on Voluntary Dispute Resolution and the Industrial Relations (Amendment) Act The following measures were agreed for this purpose: the introduction of an indicative overall time-frame targeting 26 weeks - with provision for up to a maximum of 34 weeks where necessary - for the processing of cases under the Voluntary Dispute Resolution Code and the 2001 Act to the point of issuance of a determination, save when an extension is agreed by the parties; the amendment of Section 2 of the 2001 Act to provide that engagement by the Court could now take place on the basis of a breach of the time-frames within the Code, the exhaustion of the time-frames or the indication at any time by the Labour Relations Commission that it is unable to assist the parties; these provisions to be substituted for the existing Section 2(1)(b), while preserving the remainder of the Section; the amendment of Section 3 of the 2001 Act so as to allow the Court to combine both the preliminary and substantive hearings, where it considers this to be appropriate; the removal of the provision in the Act for the Labour Court to review a determination, prior to seeking enforcement of a determination by the Circuit Court, by deleting section 9 and amending section 10 to provide for an entitlement for the trade union or excepted body to apply to the Circuit Court for the enforcement of a determination immediately - or on expiry of whatever implementation period is provided for in the determination; the development of transitional provisions to allow for the processing of cases in current disputes where access to the Code of Practice on Dispute Resolution as at the date of agreement is not available; the introduction of a new Code of Practice setting out the different types of practice which would constitute victimisation arising from an employee s membership or activity on behalf of a trade union or a manager discharging his or her managerial functions, or other employees and the amendment of the Act to provide that the Labour Court should have regard to breaches of this Code and where appropriate should provide for redress when making its determination. 5. In April 2003 the Minister for Enterprise, Trade and Employment requested the Commission under section 42(1) of the Industrial Relations Act 1990 to prepare a draft Enhanced Code of Practice on Voluntary Dispute Resolution pursuant to the provisions of Article 8.9 of the Sustaining Progress Social Partnership Agreement In advance of the Minister s request the Department of Enterprise, Trade and Employment chaired discussions over a five -week period between trade union and employer organisations on the enhancement of the existing procedures (Article 8.11 of Sustaining Progress). The outcome of these discussions was communicated to the Labour Relations Commission in May When preparing and agreeing this Enhanced Code of Practice, the Commission consulted with the Department of Enterprise, Trade and Employment, ICTU, IBEC, and the Labour Court and took account of the views expressed to the maximum extent possible. 10

11 8. The major objective of the Enhanced Code is to provide an improved framework that has the full support of all the parties for the processing of disputes arising in situations where negotiating arrangements are not in place and where collective bargaining fails to take place. 2 - PROCEDURES Where negotiating arrangements are not in place and where collective bargaining fails to take place, the following process would be put in place with which management and unions should fully co-operate in seeking to resolve the issues in dispute effectively and expeditiously: 1. The procedure will last for a period of 6 weeks from the date of receipt by the other party of a written invitation from the Labour Relations Commission to participate in the procedure. The referring party may copy the original Labour Relations Commission referral to the other party at time of referral. The 6 weeks to include 2 weeks to arrange meetings and commence discussions on the issues in dispute and 4 weeks for substantive engagement on the issues in dispute. In the event that the parties are making substantial progress toward a resolution of the dispute this time frame can be extended by agreement (see paragraph 5 below). 2. In the first instance, the matter should be referred to the Labour Relations Commission in the prescribed format (see Appendix). An Advisory Officer will be appointed by the Commission to facilitate the procedure. 3. On receipt of the referral in the prescribed format the Advisory Officer will issue a written invitation (by registered post) to the other party to the dispute to participate in the voluntary dispute resolution procedure. Failure by the other party to indicate to the Advisory Officer (in writing) their willingness to participate in the procedure within 2 weeks (during which a reminder will issue) will be deemed to be a breach of the time frame. During this two-week period the Advisory Officer will seek to arrange a preliminary meeting with the other party. 4. On receipt of written confirmation (within 2 weeks) of the other party s willingness to participate in the procedure the Advisory Officer will work with the parties in an attempt to resolve the issues in dispute over a period of 4 weeks. 5. If progress is being made it may be agreed by the parties to extend the time frame. In this context the parties will seek the views of the Advisory Officer as to the likelihood of progress being made through the Labour Relations Commission intervention in the event of any such agreed extension. During any such extension an agreed cooling-off period can be put in place and the Advisory Officer will continue to work with the parties in an attempt to resolve any outstanding issues. The Labour Relations Commission may engage expert assistance throughout the procedure, including the involvement of ICTU and IBEC, should that prove helpful to the resolution of any differences. 6. If after the six-week period or following any agreed extension, including any agreed cooling-off period, all issues have been resolved, the Advisory Officer will disengage and the procedure will be deemed to be completed. Before disengaging, the Advisory Officer may make proposals to the parties for the peaceful resolution of any future grievances or disputes. 7. In the event of issues remaining unresolved the procedure will be deemed to have been exhausted and the Advisory Officer will then make an immediate written report to the Labour Court on the situation. Appendix Prescribed Format for Referrals to the Labour Relations Commission The referring party must ensure that the following details are made available to the Labour Relations Commission at the time of referral and that all referrals are addressed to the Director 11

12 of the Advisory Service, Labour Relations Commission, Tom Johnson House, Haddington Road, Dublin 4. Name and address of union official and contact number/fax/ address. Name and address of company, contact person, number/fax/ address and details of any representative organisation where known (IBEC, CIF etc.) Category of members i.e. general operatives, admin., production, technical etc. A description of the issues in dispute. Any correspondence or dialogue entered into with other party by the initiating party. GIVEN under my hand, 13 th January Frank Fahey Minister of State at the Department of Enterprise, Trade and Employment 12

13 ANNEX 2 Application Form to Labour Court under Industrial Relations (Amendment) Act, 2001 [as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004] 13

14 Industrial Relations (Amendment) Act, 2001 [as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004] APPLICATION TO THE LABOUR COURT FOR INVESTIGATION OF DISPUTE PART 1 Details of Dispute TRADE UNION OR EXCEPTED BODY 1 : Name: Address: Contact person: Phone number: address ******************** EMPLOYER: Name: Address: Contact person: Phone number: ********************* DESCRIPTION OF DISPUTE: N.B. Please now complete Part 2 of this form overleaf. 1 Excepted body means an excepted body within the meaning of section 6 of the Trade Union Act, 1941, as amended by the Trade Union Act,

15 PART 2 - Questionnaire re Statutory Pre-conditions* YES NO 1. Is it the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to this trade dispute? 2. Have any internal dispute resolution procedures been availed of by the parties? 3. Has the employer failed to observe a provision of the Code of Practice on Voluntary Dispute Resolution specifying the period of time for doing something, or any agreement extending that period of time If you have answered Yes to this question, please state below which provision of the Code the employer has failed to observe. 4. Has the Trade Union/Excepted Body acted in a manner which has frustrated the employer in observing a provision of the Code of Practice? 5. Has the Trade Union/Excepted Body engaged in any industrial action after the date on which the dispute has been referred to the Labour Relations Commission? Signature of Applicant:, of (Name) (Title) (Name of trade union/excepted body) Date: *See overleaf for Statutory Pre-conditions 15

16 STATUTORY PRE-CONDITIONS TO LABOUR COURT INVESTIGATION OF A DISPUTE UNDER THE INDUSTRIAL RELATIONS ACT, 2001* Section 2 (1) Industrial Relations Act, 2001* 2.- (1) Notwithstanding anything contained in the Industrial Relations Acts, 1946 to 1990, at the request of a trade union or excepted body, the Court may investigate a trade dispute where the Court is satisfied that (a) it is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are part to this dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolved 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 any thing (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 excepted body 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 excepted body 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. Note: The Court means the Labour Court and the Commission means the Labour Relations Commission. * As amended by the Industrial Relations (Miscellaneous Provisions) Act, Completed forms should be returned WITHIN 7 WORKING DAYS to Programming Unit, The Labour Court, Tom Johnson House, Haddington Road, Dublin 4 Telephone (01) , ,

17 ANNEX 3 Form for confirmation by Employer that information on Union application under Industrial Relations (Amendment) Act, 2001 is correct 17

18 Industrial Relations (Amendment) Act, 2001 [as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004] CONFIRMATION BY EMPLOYER THAT INFORMATION ON UNION APPLICATION IS CORRECT EMPLOYER DETAILS: Name: Address: Contact person: Phone number: address ************ Query: Do you agree that the information in the attached application to the Labour Court is correct? Yes No (Please tick appropriate box) If you have answered No please complete the Questionnaire on page 2 of this form. Signed: (Name) (Position in enterprise) Date: Note: this form should be completed and returned to Programming Unit, The Labour Court, Tom Johnson House, Haddington Road, Dublin 4, within 7 working days. If the Labour Court does not receive your completed form within 7 days, it will be assumed that you agree that the information in the attached application is correct. 18

19 QUESTIONNAIRE RE. STATUTORY PRE-CONDITIONS* YES NO 1. Is it the practice of your enterprise to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are part to this dispute? 2. Have any internal dispute resolution procedures been availed of by the parties? 3. Has your enterprise failed to observe a provision of the Code of Practice on Voluntary Dispute Resolution specifying the period of time for doing something, or any agreement extending that period of time? 4. Has the Trade Union/Excepted Body acted in a manner which has frustrated your enterprise in observing a provision of the Code of Practice? If you answer Yes to this question, please give details below. 5. Has the Trade Union/Excepted Body engaged in any industrial action after the date on which the dispute has been referred to the Labour Relations Commission? 6. Do you agree with the description of the dispute on the application form of the Trade Union/Excepted Body? If you have answered No to this question, please give your description of the dispute below. *See overleaf for Statutory Pre-conditions 19

20 STATUTORY PRE-CONDITIONS TO LABOUR COURT INVESTIGATION OF A DISPUTE UNDER THE INDUSTRIAL RELATIONS ACT, 2001 * Section 2 (1) Industrial Relations Act, 2001* 2.- (1) Notwithstanding anything contained in the Industrial Relations Acts, 1946 to 1990, at the request of a trade union or excepted body, the Court may investigate a trade dispute where the Court is satisfied that (a) it is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are part to this dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolved 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 any thing (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 excepted body 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 excepted body 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. Note: The Court means the Labour Court and the Commission means the Labour Relations Commission. * as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004 Please return your completed form to:- Programming Unit The Labour Court Tom Johnson House Haddington Road Dublin 4 (Telephone: (01) , , ) 20