Labour Court Database __________________________________________________________________________________ File Number: CD88101 Case Number: AD8818 Section / Act: S13(9) Parties: DUBLIN COUNTY COUNCIL - and - NATIONAL UNION OF WOODWORKERS AND WOODCUTTING MACHINISTS |
Appeal by Dublin County Council against Rights Commissioner's Recommendation No. B.C. 185/87 concerning the alleged breach of an agreement in respect of the re-deployment of a worker.
Recommendation:
11. The Court is of the view that the Agreement of July, 1987,
does not relate to situations involving the re-deployment of
personnel arising from financial shortfall as has occurred in this
case.
The Court therefore upholds the Council's appeal against the
Rights Commissioner's recommendation.
The Court so decides.
Division: Mr Fitzgerald Mr Shiel Mr O'Murchu
Text of Document__________________________________________________________________
CD88101 APPEAL DECISION NO. AD1888
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: DUBLIN COUNTY COUNCIL
and
NATIONAL UNION OF WOODWORKERS AND WOODCUTTING MACHINISTS
SUBJECT:
1. Appeal by Dublin County Council against Rights Commissioner's
Recommendation No. B.C. 185/87 concerning the alleged breach of an
agreement in respect of the re-deployment of a worker.
BACKGROUND:
2. The worker concerned is employed as a Foreman/Craftsman by the
Council and up to August, 1987, was attached to the Road
Construction Direct Labour Section since 1974, and was the
supervisor of various major road construction schemes which
attracted regular overtime.
3. Because of lack of funds and lack of work on road
construction, the worker was transferred to working on road
maintenance doing similar type work and at the same grade.
4. Prior to the transfer the worker enjoyed regular overtime of
1½ hours per day. However since his transfer he has not worked
overtime.
5. The Union claimed the re-introduction of overtime as per an
Agreement dated 6th July, 1987, reached between the Council and
the I.C.T.U. group of Unions, and compensation for the loss of
overtime since September, 1987. Clause 3 of the Agreement
states -
"Instead of the elimination of structured overtime outlined by
the Council in its letter of 29th May, 1987, the Council
agrees to the retention of 50% of the structured overtime
listed therein under the headings "A to E" in respect of
those currently employed. (Drivers appointed from the
existing panels over the next two years are included in those
clauses). The Council intends to treat the structured
overtime of Supervisory Grades (Road Overseer, Foremen, etc.)
correspondingly".
6. The Council rejected the claim on the basis that the Agreement
did not apply to the worker concerned as he had been re-deployed
to another section.
7. The matter was referred to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner issued
the following Recommendation dated 15th January, 1988, following
an investigation held on 8th January, 1988 -
"In the light of the above I have considered very carefully
the detailed points made and I must state that this is a very
difficult case with implications drawing from either decision
open to me. After a great amount of agonising in the matter
I believe the worker's position must be upheld i.e. that the
agreement of July, 1987, covers the case of the worker and
therefore the terms of that agreement in particular Clause 3
must be implemented in his case. While the Council has
argued that the worker has been re-deployed nonetheless in
its own submission on page 1 it stated "as a result of this
the worker is employed in the same grade and in carrying out
the same type of work as he formally did but does no evening
overtime". Thus to all intents and purposes the content and
scope and grade of the job is the same.
I therefore recommend that Dublin County Council implement
Clause 3 of the agreement of July 1987, in the case of the
worker.
I am mindful of the point made by the Council concerning
repercussions and therefore should it feel that the agreement
of July 1987, is now, for valid reasons, inapplicable or
irrelevant, I would suggest that it sits down again with the
parties to that agreement and re-negotiate it in the light of
the contemporary situation".
The worker was mentioned by name in the Rights Commissioner's
Recommendation.
8. The County Council appealed the Recommendation to the Labour
Court under Section 13(9) of the Industrial Relations Act, 1969.
The Court heard the appeal on 3rd March, 1988.
COUNCIL'S ARGUMENTS:
9. 1. The Council does not accept that the worker is covered by
Clause 3 of the July Agreement. Because of its financial
position, the Council has reduced its outdoor staff by 280
under the Government's Scheme of Voluntary Redundancy/Early
Retirement but it still has a surplus in the Foreman grade.
Every effort is being made to re-deploy surplus Foremen into
other areas (details supplied to the Court).
2. In the circumstances, the Council does not think it
reasonable to be asked to pay for unworked overtime in a
situation where, through no fault on the Council's part or on
the Foreman's part, it has not got, at present, enough work
at the appropriate level for a number of its supervisory
staff.
3. The Council wishes to draw the Court's attention to its
previous recommendation No. LCR11578, which involved a
similar case to the one at present before the Court in which
the Court ruled in the County Council's favour that overtime
should not be retained or the loss of such overtime should
not be compensated for. The Court should note that in the
case referred to, the Court hearing took place since the July
Agreement on the reduction in overtime and re-deployment was
involved as in the present case.
UNION'S ARGUMENTS:
10. 1. The worker is covered by Clause 3 of the July Agreement
- he is doing the same type of work and is in the same grade
even though he has been re-deployed. The Rights Commissioner
acknowledged this point in his Recommendation.
2. The Union, of course, is concerned at the financial
constraints imposed on the Council by Government cutbacks,
but it must be equally concerned by the decision of the
Council to ignore an Agreement freely entered into.
3. The only way to preserve peace in industry is for both
parties to honour such agreements. If the Council felt the
need to re-negotiate the Agreement it is open to it to go
through the procedure which led to the July Agreement.
DECISION:
11. The Court is of the view that the Agreement of July, 1987,
does not relate to situations involving the re-deployment of
personnel arising from financial shortfall as has occurred in this
case.
The Court therefore upholds the Council's appeal against the
Rights Commissioner's recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court
8th April, 1988 Nicholas Fitzgerald
M.D./P.W. Deputy Chairman