AD8773

Subject:
Appeal, by the Company against Rights Commissioner's recommendation No. CM 17,323, concerning the re-hiring of craftsmen after redundancy.

Recommendation:
6. Compulsory redundancies do not normally provide for formal
'recall' unless such an arrangement is specifically negotiated in
advance. The Union argument that it was provided for in the 1979
agreement is weakened by the fact that the Union formally withdrew
from that agreement in 1982, although the Court accepts that
facets of the agreement still apply.

The situation is further complicated by the fact that in the
negotiations aimed at a comprehensive agreement, which commenced
in 1982 and are still incomplete, the Company seemed to accept the
principle of 'recall' albeit on very restricted conditions.

Accordingly, the Court, having considered the submissions made by
the parties, finds as follows in relation to the Rights
Commissioner's recommendation -

The Court considers the Rights Commissioner's recommendation
should stand until 31st December, 1988, i.e. any worker made
compulsorily redundant up to that date will have the right of
'recall'.



In the interim the parties should negotiate a mutually acceptable
clause in relation to the issue of 'recall'. In the event of
agreement not being achieved, the Company shall be freed from the
obligation of 'recall', in respect of redundancies occurring from
1st January, 1989, onwards.

The Court so decides.

Division: Mr Fitzgerald Mr Heffernan Mr Walsh

Text of Document__________________________________________________________________

CD87469 THE LABOUR COURT AD7387
Section 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 73 OF 1987

PARTIES: ECCO LIMITED

and

CRAFT UNION GROUP



Subject:

1. Appeal, by the Company against Rights Commissioner's
recommendation No. CM 17,323, concerning the re-hiring of
craftsmen after redundancy.

Background:

2. In the 1979 Comprehensive Agreement made between the parties
it is stated that in all cases of re-hiring after redundancy total
continuous service, on a plant basis, would be the major factor
covering such re-hiring. The Union Group submits that in the
current pay negotiations the Company wants to limit the period for
such re-hiring to 12 months from the date of redundancy while the
Union Group wants it to be for a minimum period of 36 months for
those made compulsorily redundant. The Company sees no reason why
it should have to fill vacancies automatically from past employees
who got extremely generous severance terms. The Company believes
that a person made redundant on such good terms has no special
entitlement to recall but it is prepared to agree to a 12 months'
period for those who settle for statutory terms only.


The Union Group believes that this is unfair to people with long
service who have been made redundant compulsorily. They feel that
those made redundant between December 1984 and the end of 1985,
left on the assumption that the terms of the 1979 Comprehensive
Agreement would continue to apply to them. The Company says that
the 1979 Agreement had expired by December 1984. It asserts that
it must at all times reserve the right to select employees in the
best interests of the business without question or qualification;
in any future vacancies all applicants will receive equal
treatment.

3. The matter was referred to a Rights Commissioner for
investigation and on 19th December, 1986, he issued the following
recommendation -

"The Unions are not claiming an absolute right to automatic
recall because "major factor" would be in any provisions;
that would still leave Management with discretion.

Subject to that, the period of recall from the date of any
future compulsory redundancies should be 12 months. Because
of the 1979 Agreement I believe that the Company ought now
apply a three year term from date of redundancy to those who
had to leave compulsorily since December 1984; none of them
would have a claim to any position already filled within that
period".

This recommendation was not acceptable to the Company, who
appealed it to the Labour Court on 19th January, 1987. A Court
hearing took place in Dundalk on 1st September, 1987.


Company's arguments:

4. (a) The Company rejects the Rights Commissioner's
recommendation on the basis that the 1979 Agreement
was misquoted by the Union Group, in so far as the
Articles contained therein, specifically 'Lay-off and
Recall', were not agreed between both parties. The
craftsmen who were made redundant since 1984, were not
informed that the terms of the 1979 Agreement would
continue to apply to them. If the Company were to
accept the recommendation, it would be restricted in
its ability to recruit selectivly during the 12 month
period following a redundancy.

(b) The Company's policy is that where a redundancy lump
sum has been paid to cover service with the company,
the redundant employee has no special entitlement to
future job opportunities. In line with this policy
the Company gives every consideration to redundant
employees in future job opportunity situations but is
not prepared to give them first preference simply on a
prior service basis. The redundancy terms are
significantly above statutory entitlements. Any
concession of call-back rights would have to be
reflected in the level of redundancy terms.

(c) In any future vacancy situation all applications would
be on an equal footing. The redundant employee
applicant has an advantage in that the Company has
first hand knowledge of his capabilities. This is
particularly so where his record in performance,
attendance etc. has been satisfactory. The Company's
policy would be to employ the most suitable applicant
relative to the requirements of the specific vacancy.


Unions' argument:

5. (i) The Company's responsibility should not end after
people are made compulsorily redundant which is an
entirely different situation from those who accept
voluntary redundancy. In almost all other redundancy
cases the Company's package had been over subscribed
and as a result enhanced terms were given. In the
case of the craftsmen, in almost every instance it had
been necessary to make some people compulsorily
redundant, which is an entirely different situation.
The Union Group does not accept that because they
received the same payment as those who had been made
voluntarily redundant they should be barred from being
recalled.

(ii) The draft document submitted by the Company, which is
to be considered by both sides in order to arrive at a
comprehensive agreement, contains a clause that the
Company will accept recalling people up to a period of
12 months. The Union Group now claims that this
should be for a period of 36 months in the event of
the Company wishing to employ temporary craftsmen.
The workers should be recalled on a seniority basis.
This would satisfy both redundant craftsmen and those
still employed, who have reservations that they may be
treated in a similar manner if more redundancies
occur.

(iii) The 1979 Agreement provided for a 12 month re-call
period, with no stipulation that acceptance of the
enhanced redundancy terms would render the recall


clause void. The Union Group believes it to be
unjustifiable that the Company should discriminate
against one group of people i.e. those who accepted
enhanced terms when made compulsorily redundant.

DECISION:

6. Compulsory redundancies do not normally provide for formal
'recall' unless such an arrangement is specifically negotiated in
advance. The Union argument that it was provided for in the 1979
agreement is weakened by the fact that the Union formally withdrew
from that agreement in 1982, although the Court accepts that
facets of the agreement still apply.

The situation is further complicated by the fact that in the
negotiations aimed at a comprehensive agreement, which commenced
in 1982 and are still incomplete, the Company seemed to accept the
principle of 'recall' albeit on very restricted conditions.

Accordingly, the Court, having considered the submissions made by
the parties, finds as follows in relation to the Rights
Commissioner's recommendation -

The Court considers the Rights Commissioner's recommendation
should stand until 31st December, 1988, i.e. any worker made
compulsorily redundant up to that date will have the right of
'recall'.



In the interim the parties should negotiate a mutually acceptable
clause in relation to the issue of 'recall'. In the event of
agreement not being achieved, the Company shall be freed from the
obligation of 'recall', in respect of redundancies occurring from
1st January, 1989, onwards.

The Court so decides.
~


Signed on behalf of the Labour Court
Nicholas Fitzgerald
________________________
17th September, 1987
B.O'N./P.W. Deputy Chairman.