Labour Court Database __________________________________________________________________________________ File Number: CD88174 Case Number: AD8838 Section / Act: S13(9) Parties: BECTON DICKINSON AND COMPANY LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. ST27/88 concerning the interpretation of the Company/Union Agreement.
Recommendation:
7. The Court, having carefully considered the submissions made by
the parties and also the provisions of the 1986 Agreement,
considers that the Company acted in accordance with the Agreement
in the manner of its re-organisation of the Syringe Department.
The Court accordingly upholds the Company's appeal.
The Court so decides.
Division: Mr Fitzgerald Mr Shiel Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD88174 APPEAL DECISION NO. AD3888
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BECTON DICKINSON AND COMPANY LIMITED
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. ST27/88 concerning the interpretation of the
Company/Union Agreement.
BACKGROUND:
2. The dispute concerns the Company's claim to have the right to
appoint workers to permanent positions which arise following
changes in methods, manning and/or redeployment within an area
known as the Syringe Department. The Department had operated on
the basis of a rotating machine operator, i.e. an operator would
operate different machines in the Department over a cycle of
shifts. In order to improve performance the Company decided that
workers should be assigned to specific machines so that their
experience and skills can be used to maximum benefit. The Union
believed that this was contrary to both the contents and spirit of
the 1986 Company/Union Agreement in relation to the filling of
vacancies. Local discussions failed to resolve the issue,
however, the Union agreed to implement the changes requested,
under protest, pending referral to a third party. The matter was
referred to a Rights Commissioner who heard the case on 27th
January, 1988. On 12th February, 1988, the Rights Commissioner
issued the following recommendation and conclusions:-
3. "Recommendation:
Much of the information fed by both parties relates to
practices since October, 1986, when the Agreement was signed.
I am more concerned with what the actual text states and the
overall picture it gives in relation to the parties'
intentions at that time. I have examined the Agreement with
this in mind. One disturbing feature of this case is that
both parties see the resolving of this dispute in their
favour, as crucial to their standing in the future, under the
Agreement. I do not share this view. The matter in dispute
should not be elevated to such importance. The Union
statement, which was not denied, that the Company accepts
that if seniority was used, then the "end result would be
something similar" seems to prove the point.
In relation to the text, I find that the word "Seniority" is
mentioned eleven times. In fact it has a definition included
on page 5. More importantly it has been coupled with
"Redeployment" in a whole clause beginning on page 5 and
ending on page 7 and entitled "Seniority and Redeployment."
Under "Redeployment" (1) on page 6 it states inter alia
"Redeployment on a permanent basis out of a Department will
be carried out on the basis of plant seniority."
Again in (4) on page 7 it states "In filling any vacancy,
seniority will be a principle factor." The Company also had
the right under this clause, to remove the person after three
months if not found to be suitable.
4. Conclusions:
From the above it is clear that seniority in its many forms
is a feature of the Agreement and is clearly seen as such at
the Drogheda Plant with its longer traditions. The Company
enjoys more flexibility at the Dun Laoghaire Plant even
though there is a similar Agreement in force at both Plants.
Naturally the Company would wish to enjoy an extension of
such flexibility to Drogheda, particularly since the trading
position of the Irish operation has disimproved since
October, 1986. I do not see how this can be effected under
the "Seniority and Redeployment" clauses of the Agreement,
although the clause "On-going Changes" does offer some
comfort in a general way, but it is not specific enough for
the Company's purpose, in this case. In all the
circumstances, I recommend that the Union's interpretation is
more in accord with the Agreement as written, than is the
Company's.
However, I cannot ignore the Company's present trading
position and in view of this, I recommend that the parties in
Drogheda should negotiate more flexibility under the clause
"On-going Changes" on page 2 of the October, 1986 Agreement.
Third party assistance should be sought if needed."
The Rights Commissioner's recommendation was unacceptable to the
Company who appealed it on 19th February, 1988, to the Labour
Court under Section 13(9) of the Industrial Relations Act, 1969.
The Appeal was heard on 8th June, 1988, in Drogheda.
COMPANY'S ARGUMENTS:
5. 1. In 1986, the Company entered into an Agreement with both
the Dun Laoghaire and Drogheda Plants, which provided for
total flexibility of the workforce. Prior to 1986, all
changes in manning were carried out on the basis of seniority.
The new Agreement redefined the boundaries of departments and
sought total flexibility within those departments. Under the
new agreement seniority could only be invoked under 3
conditions:
(a) a change from one department to another,
(b) a change of pay category,
(c) a change from one shift to another.
In all other cases workers were obliged to move in accordance
with the business needs and management direction.
2. In the particular case that has arisen the above mentioned
conditions do not apply. There is therefore no redeployment
in accordance with the agreed definition and there is no case
for filling jobs on the basis of seniority.
3. The Union is seeking to return to practices which existed
prior to the signing of the Agreement. All movement of
workers since the Agreement have been carried out strictly in
accordance with the letter of the Agreement. The Company
cannot accept a return to old practices, it must be free to
manage without undue constraints or it will not be able to
compete with sister plants in Europe.
4. The Agreement was hammered out over a period of 5 months
of intense negotiations. Each worker received a copy of the
Agreement prior to a ballot. They understood what was
required of them and voted by a substantial majority for
acceptance of the agreement, which brought benefits including
increased rates of pay and other fringe benefits.
5. The Agreement set out the framework for future
management/worker relationships and flexibility and mobility
is a fundamental part of the Agreement. Any watering down of
the basic principles of the Agreement would detract from
managements ability to guide the Company through a difficult
period.
UNION'S ARGUMENTS:
6. 1. The Rights Commissioner accepts that the only agreement
covering the workers in the Drogheda Plant is the 1986
Agreement. He clearly accepts that clauses covering on-going
changes, flexibility and mobility covers part of the problem
i.e. the method of operation. When it comes to the method of
selection the Rights Commissioner clearly spells out the basis
on which the "redeployment" clause operates; "Redeployment on
a permanent basis out of a department will be carried out on
the basis of plant seniority." "In filling any vacancy,
seniority will be a principle factor."
2. The Rights Commissioner found that the word seniority is
mentioned eleven times in the Agreement, whilst the word
suitability is only mentioned once (details provided to the
Court).
3. At no time did the Company claim there were circumstances
which required them to select any individual on suitability.
In fact, the Company accepted that if seniority was used, then
the end result would be similar. This shows that the Company
were 'trying it on' in regard to the filling of vacancies.
4. It is important that agreements are adhered to by both
sides, both in their spirit and content. In this case the
Company have clearly breached the agreement. The Rights
Commissioner's recommendation, which is both fair and honest,
should, in the interests of both sides for the future, be
upheld.
DECISION:
7. The Court, having carefully considered the submissions made by
the parties and also the provisions of the 1986 Agreement,
considers that the Company acted in accordance with the Agreement
in the manner of its re-organisation of the Syringe Department.
The Court accordingly upholds the Company's appeal.
The Court so decides.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
_____________________
29th July, 1988. Deputy Chairman
B.O'N./J.C.