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| The ESB Branch, Network Technicians |
Re- ESB – IWU Official Industrial/Trade Dispute
Dear All,
On Thursday 28/1/2021 in Dail Question time Mick Barry T.D. asked the following question of Leo Varadkar, Tánaiste:
Will you call on the ESB to take a step back from the brink, by withdrawing the threat of legal action, and agreeing to talk to the chosen representatives of these workers?
The Tánaiste replied:
Network Technicians at ESB Networks who are members of the Independent Workers Union, are currently engaged in industrial action and this includes work to rule and work stoppages. Industrial relations within ESB Networks are a matter for the company, and while any industrial action is regrettable the impact of this particular industrial action is expected to be limited. The action is taken by Network Technicians at the ESB who are members of the Independent Workers’ Union. this Union is not affiliated to either the ESB Group of unions or the Irish Congress of Trade Unions, and workers who are members of these unions are not involved in any industrial action.
At this particular juncture in the ongoing dispute we, on behalf of the IWU-NT membership, would like to put forward a genuine account of the actual situation.
After an internal consultation process, the Independent Workers’ Union was mandated by over 500 of its NT members to pursue a claim for consultation rights on the continued outsourcing of their work to external third parties. A process – known as the Local Implementation Groups (LIGs) - already existed within the ESB whereby this consultation facility was afforded to other employees and members of other trade unions. For a period of almost two years, the employees and their Trade Union properly utilised every available internal grievance avenue to reach an accommodation with the Employer on the matter. At every turn, the Employer thwarted any forward movement and resolutely refused to accommodate all forms of dialogue. The blanket response was that the Employer did not recognise the Trade Union and would not engage.
It is very important to point out that at no time did the Union ever request recognition status on this issue. In a litany of correspondence to the Employer it acknowledged the Employer’s legal right not to recognise a Trade Union, should it choose not to do so. This is an irrefutable fact. It was never about recognition of unions but recognition of rights. What was pointed out to the Employer in numerous letters was that the employees concerned were legally entitled to consultation and information rights on the outsourcing of their work as outlined in the Employees (Provision of Information and Consultation) Act 2006 and the Industrial Relations Act 1990 (Code of Practice on Information and Consultation) (Declaration) Order 2008.
It is also crucial to assert that this particular piece of legislation was introduced to actually ensure that employees who were not members of a recognised trade union, not members of any trade union or were members of a trade union not recognised by an Employer, had a legal entitlement to an information, consultation process and procedure to be enacted within their place of employment.
The criteria for asserting such a right under the legislation is that in a situation where within a particular grade, over ten per cent of the employees wish to make an application for consultation they can use the clearly defined format whereby fifteen or more employees nominate an excepted body (Trade Union or Association or Representative) to make the application on their behalf. The claim can be made either to the Employer directly or to the Labour Court.
The Union, as duly appointed representatives, appropriately made the claim on behalf of their affected members to the Employer. It clearly stipulated at the time, that it was acting as the appointed representative of over one third of the NT section’s 400 plus members. This stipulation was expressed to the Employer and further in a submission form to the WRC Conciliation Service which is the appropriate first referral point identified within the legislation. The submission to the WRC was also copied to the Employer.
The Employer chose to totally ignore the validity of the claim and rejected all available avenues for dispute resolution which are:
- The Code of Practice for Employers within the provision of an Essential Service
- The Code of Practice on Information and Consultation (Declaration) Order 2008.
The Employer has decided not to engage in the legislatively defined covenant for dispute resolution outlined below.
16.2 However, parties may not be able to reach agreement at local level. In these situations, the Act makes extensive provision for third party dispute resolution in relation to different types of dispute arising from the various provisions of the Act. Specifically, these relate to interpretation or operation of agreements or systems of direct involvement. It is important to note the first point of referral in this regard is the Conciliation Services of the Labour Relations Commission, which gives parties an opportunity to reach agreement on the matter in contention in an informal process under the chairmanship of an independent third party. If the dispute is not resolved, it is referred to the Labour Court for recommendation or determination. Ultimately a Labour Court determination can be enforced by the Circuit Court.
This was in contravention of their obligations and responsibilities as an Essential Service Provider.
Unfortunately, the Employer has moved to issue legal proceedings in the High Court under the Defamation Act, 2009 (a civil action) against the Union and its official. This is an action not lodged under any Employment Law legislation as one would expect, but through what the union contends is a wholly unsuitable forum.
By its actions, the Employer is actually making a mockery of the state created machinery for the resolution, mediation, facilitation, adjudication, and determination of industrial relation matters - the Workplace Relation Commission and the Labour Court.
To be precise, the Employer has chosen to ignore the clearly defined procedures set out in the Statutory Instrument: the Employees (Provision of Information and Consultation) Act 2006 and the Industrial Relations Act 1990 (Code of Practice on Information and Consultation) (Declaration) Order 2008.
This is coming from a semi-state employer that, one would imagine, is obliged to comply with state legislation, Statutory Instruments, and state codes of practice. If the Employer’s action were deemed to be acceptable, leading to every employer taking an intransigent approach to a declared industrial dispute, the entire edifice of Employment Legislation risks crumbling, the corollary of which would be every protection enjoyed by all employees of the nation being placed in jeopardy.
Furthermore, it is worth noting that the employees involved are also shareholders in the company. By their continued exclusion, serious questions arise under the Companies Act in relation to the exclusion of shareholders (Minority freeze out) regarding the continued outsourcing of the shareholders’ work without consultation. This fact was registered and brought to the attention of both the Employer and the ESOP by the Trade Union as far back as December 2019. Yet again the Employer chose to ignore the raised concern.
Other constitutional concerns have now come to light pertaining to the Employers’ insistence on a closed shop arrangement with the Group of Unions being adhered to by all employee/shareholders. This must impact or breach the Freedom of Association and Freedom of Disassociation clauses within the related articles of the Irish Constitution. It invites consideration of the possibility of such an arrangement being actually repugnant to the Constitution.
Another concern is that within the internal individual employer grievance and disciplinary procedures, there is a restriction in place which aims to prevent the grievance being referred to an independent third party, like the WRC for final adjudication or determination. This flies in the face of the principles of fair procedure and natural justice.
There are 500 plus employees in the NT section. This constitutes almost fifty per cent within the grade and is growing daily. Their industrial action has the mandate and justification under the legislation which insists on the approval by secret ballot – in this case an overwhelming majority backed Industrial action. The massive turnout by the members nationally on both stoppage days, proves beyond any shadow of doubt the validity of both the claim and the actions initiated by the Trade Union on their behalf.
Our members also acknowledge with sincere thanks and great appreciation the support given to them by those Group of Unions members who supported our official actions on both days.
As always from day one, this Union remains available at any minute of the day to enter dialogue and mediation on all related matters of dispute through the good offices of the WRC Conciliation Service, the appropriate and proper forum for the resolution of such disputes.
As the dispute is rooted in the provision of an essential service, and the Union is deeply sensitive to the needs of the public depending on the service provided, it respectfully calls on all elected representative to use their good office to insist that the Employer behaves responsibly and acts within the established resolution machinery of the state; that it adheres to the available mechanisms of the Industrial dispute resolution services of the Workplace Relations Commission Conciliation Service, and desists from the ill-conceived resort to High Court service orders, a totally inappropriate forum for such a dispute. Politicians should work to ensure that the Employer enters a meaningful process for the satisfactory resolution of this matter.
To every recipient of this letter, we would like to thank you for taking the time to read our frank account of the current predicament. It is our sincere hope that you can support our call for negotiations between the Employer and the employees and that you will raise the matter at the appropriate levels.
Yours Sincerely,
Brian Baitson, Alan Thompson, Gerard Tuohy, Gerard Hoey, Michael Dolan, P.J.Tierney, Shane Duggan, Alan Matthews, Brendan O Donnell, Brian Naughton, Ciaran Kinsella, David Corbett, Declan Doherty, Frank Martyn, Jack Toland, Jonathon Magnier, Larry Mc Donald, Liam Coakley, Michael Buckley, Norman Valentine, Ritchie Vaughan, Shane Johnston, Stephen Darling, Gerry Mc Carthy, Shay Duggan - Strike Committee, ESB, IWU, Network Technicians.
Gerry Corbett, Union Official. IWU, ESB.
This is coming from a semi-state employer that, one would imagine, is obliged to comply with state legislation, Statutory Instruments, and state codes of practice. If the Employer’s action were deemed to be acceptable, leading to every employer taking an intransigent approach to a declared industrial dispute, the entire edifice of Employment Legislation risks crumbling, the corollary of which would be every protection enjoyed by all employees of the nation being placed in jeopardy.
Furthermore, it is worth noting that the employees involved are also shareholders in the company. By their continued exclusion, serious questions arise under the Companies Act in relation to the exclusion of shareholders (Minority freeze out) regarding the continued outsourcing of the shareholders’ work without consultation. This fact was registered and brought to the attention of both the Employer and the ESOP by the Trade Union as far back as December 2019. Yet again the Employer chose to ignore the raised concern.
Other constitutional concerns have now come to light pertaining to the Employers’ insistence on a closed shop arrangement with the Group of Unions being adhered to by all employee/shareholders. This must impact or breach the Freedom of Association and Freedom of Disassociation clauses within the related articles of the Irish Constitution. It invites consideration of the possibility of such an arrangement being actually repugnant to the Constitution.
Another concern is that within the internal individual employer grievance and disciplinary procedures, there is a restriction in place which aims to prevent the grievance being referred to an independent third party, like the WRC for final adjudication or determination. This flies in the face of the principles of fair procedure and natural justice.
There are 500 plus employees in the NT section. This constitutes almost fifty per cent within the grade and is growing daily. Their industrial action has the mandate and justification under the legislation which insists on the approval by secret ballot – in this case an overwhelming majority backed Industrial action. The massive turnout by the members nationally on both stoppage days, proves beyond any shadow of doubt the validity of both the claim and the actions initiated by the Trade Union on their behalf.
Our members also acknowledge with sincere thanks and great appreciation the support given to them by those Group of Unions members who supported our official actions on both days.
As always from day one, this Union remains available at any minute of the day to enter dialogue and mediation on all related matters of dispute through the good offices of the WRC Conciliation Service, the appropriate and proper forum for the resolution of such disputes.
As the dispute is rooted in the provision of an essential service, and the Union is deeply sensitive to the needs of the public depending on the service provided, it respectfully calls on all elected representative to use their good office to insist that the Employer behaves responsibly and acts within the established resolution machinery of the state; that it adheres to the available mechanisms of the Industrial dispute resolution services of the Workplace Relations Commission Conciliation Service, and desists from the ill-conceived resort to High Court service orders, a totally inappropriate forum for such a dispute. Politicians should work to ensure that the Employer enters a meaningful process for the satisfactory resolution of this matter.
To every recipient of this letter, we would like to thank you for taking the time to read our frank account of the current predicament. It is our sincere hope that you can support our call for negotiations between the Employer and the employees and that you will raise the matter at the appropriate levels.
Yours Sincerely,
Brian Baitson, Alan Thompson, Gerard Tuohy, Gerard Hoey, Michael Dolan, P.J.Tierney, Shane Duggan, Alan Matthews, Brendan O Donnell, Brian Naughton, Ciaran Kinsella, David Corbett, Declan Doherty, Frank Martyn, Jack Toland, Jonathon Magnier, Larry Mc Donald, Liam Coakley, Michael Buckley, Norman Valentine, Ritchie Vaughan, Shane Johnston, Stephen Darling, Gerry Mc Carthy, Shay Duggan - Strike Committee, ESB, IWU, Network Technicians.
Gerry Corbett, Union Official. IWU, ESB.
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