Labour Court Database __________________________________________________________________________________ File Number: CD86761 Case Number: LCR10925 Section / Act: S33(1) Parties: BROWN THOMAS GROUP LTD - and - IDATU |
Interpretation under Section 33(i) of the Industrial Relations Act, 1946 of the Registered Employment Agreement (Dublin and Dun Laoghaire Footwear, Drapery and Allied Trades), with regard to the question of late night trading.
Recommendation:
5. The Court having considered the submissions from both
parties, the verbal arguments at the two hearings, and having
examined the Registered Employment Agreement, is satisfied that
there is no substance in the Union's claim that the Company may
open for extended trading only if there is prior agreement with
the Union. The Court is also satisfied that the Company's
interpretation of the Registered Employment Agreement is correct
and that there is nothing in the Agreement which prevents them
from trading late.
Division: Ms Owens Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD86761 THE LABOUR COURT INT1/87
Section 33(i) INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
INTERPRETATION NO. 1 OF 1987
PARTIES: BROWN THOMAS GROUP LIMITED
AND
IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION
Subject:
1. Interpretation under Section 33(i) of the Industrial
Relations Act, 1946 of the Registered Employment Agreement (Dublin
and Dun Laoghaire Footwear, Drapery and Allied Trades), with
regard to the question of late night trading.
Background:
2. In December, 1984 the Company opened its store for late night
trading. Its right to do so was disputed by the Union which
placed a picket on the store during late night trading. The
Union's position is that the Company may open for extended trading
hours if there is prior agreement with the Union. Late night
trading was again opposed by the Union in October, 1985, December,
1985 and June, 1986. In September, 1986 the Company sought an
interpretation by the Labour Court under Section 33(i) of the
Industrial Relations Act, 1946 of the Registered Employment
Agreement (Dublin and Dun Laoghaire Footwear, Drapery and Allied
Trades) which, it claimed entitled it to open for late night
trading. A hearing took place on 3rd November, 1986 which was
adjourned due to insufficient time being available on that date to
deal fully with the matter. The hearing reconvened on 5th
December, 1986.
Union's arguments:
3. (i) Clause 3 does not entitle an employer to open for
trading after normal finishing time. It recognises
that there may be late night trading. If there is
then not less than double time is to be paid. That
is as far as this clause goes. Clause 3 (c)
recognises that employees may sometimes work their
day off. The Company cannot rely on clause 3 (c) to
entitle it to require employees to work on their day
off.
(ii) The view of the Company as to the significance of
clause 3 gains no support from the fact that its
shopping centre outlets pay double time when they
are open for late night trading. Late night trading
in the shopping centres was only introduced after
agreement had been reached between the union and the
employers concerned. Part of the reached agreement
was that double time would be paid (as a minimum)
for working during late night trading hours. The
Registered Agreement was varied in September, 1982
to reflect this agreement.
(iii) The Union does not accept the Company's contention
that late night trading does not represent any
change in the terms and conditions of employment
applicable to staff on the basis that "working after
normal finishing time is purely voluntary".
(iv) The custom and practice in the trade in Dublin and
Dun Laoghaire has always been that where changes in
business policy of a kind likely to affect staff are
contemplated the Union has been consulted prior to
the change.
(v) An agreement was reached in December, 1985 between
the Company and the Union regarding late night
opening during stated periods. This agreement
covers not merely the fact of late night trading,
but when and how long on each occasion the store
might open for that purpose. It also agrees the
rate of remuneration and provides for single time
off at a mutually agreed time in the case of Tour
Groups and for the provision of tea between 5.30
p.m. and 6.15 p.m. This agreement shows that more
has to be agreed between the Company and the staff
than the rate of remuneration if late night trading
is to occur. Yet the Company's position in this
area appears to be that it is entitled to decide
firstly, that there will be late night opening,
secondly, when it will occur, thirdly for how long
on each occasion, and fourthly that it can agree
separately with staff who volunteer for this work
what their terms and conditions during their extra
employment are to be without any reference to the
Union.
(vi) If the Union were to accept the Company's claimed
entitlement it would be abrogating its obligation to
protect its members and to make the best bargain on
their behalf that can reasonably be made with the
Company in regard to terms and conditions of
employment whenever that employment is not clearly
covered by the Registered Agreement.
(vii) The Company has not shown that any other employer
interprets the Registered Agreement similarly.
(viii) Late night trading could have the consequence of
reducing the number of employees required for
trading during the day. If it had that effect there
would be great pressure imposed to reduce the number
of staff in employment or at least to reduce the
total wages paid to such staff.
Company's position:
4. (a) It is the Company's view that the Registered Employment
Agreement entitles it to open for late night trading
after normal finishing time subject to payment of
double time. Legal advise supports that view.
(b) This view is borne out in relation to the Company's
shopping centre outlets trading as Gaywear and A-Wear
which are covered by the same Registered Employment
Agreement and are open each Thursday and Friday night
paying double time in accordance with the terms of the
Agreement.
(c) Section 25 of the Industrial Relations Act defines an
employment agreement as 'an agreement relating to the
remuneration or conditions of employment of workers of
any class....'. In line with this definition the
Registered Employment Agreement for the drapery trade
covers pay and conditions but it does not contain
details regarding trading hours.
(d) The Registered Employment Agreement acknowledges late
opening in that it states that double time be paid when
a store is trading after normal finishing time.
Reflecting the development of late night trading in
Dublin the Registered Employment Agreement was varied
in September, 1982 to include double time as the
overtime payment when a store is open after normal
trading hours. The only circumstances in which double
time is paid is when a store is trading late.
(e) Late night trading does not represent any change in
terms and conditions of employment applicable to staff
since working after normal finishing time is purely
voluntary.
(f) The Registered Employment Agreement is usually updated
each year when the pay round is agreed. On updating
the basic terms the parties to the Agreement
automatically update the terms for working late.
(g) Overtime working when the store is not trading takes
place on a regular basis. In the Registered Employment
Agreement equal emphasis is placed on this work and
overtime work when the store is trading.
DECISION:
5. The Court having considered the submissions from both
parties, the verbal arguments at the two hearings, and having
examined the Registered Employment Agreement, is satisfied that
there is no substance in the Union's claim that the Company may
open for extended trading only if there is prior agreement with
the Union. The Court is also satisfied that the Company's
interpretation of the Registered Employment Agreement is correct
and that there is nothing in the Agreement which prevents them
from trading late.
~
Signed on behalf of the Labour Court.
Evelyn Owens
__18th____March,__1987. ___________________
A. K. / M. F. Deputy Chairman