Labour Court Database __________________________________________________________________________________ File Number: CD88372 Case Number: LCR11933 Section / Act: S67 Parties: GALLAHER (DUBLIN) LIMITED - and - THE MANUFACTURING, SCIENCE AND FINANCE UNION |
Dispute concerning the Union's objection to a job evaluation system for managers.
Recommendation:
5. The Court is of the view that the Company erred in proceeding
with the job evaluation scheme without having first discussed with
the parties the constitution of the revised evaluation committee.
In the circumstances now existing as a result of the evaluation,
the Court sees no useful purpose being served by suggesting any
change at this point and recommends that the exercise should now
be completed. The Court also recommends that in order that all
future evaluations are carried out with the rights of all persons
involved being safeguarded, a joint meeting of three Executives,
three MSF and three non-MSF personnel should take place to discuss
and agree future policy on job evaluation.
Division: Mr Fitzgerald Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD88372 RECOMMENDATION NO. LCR11933
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: GALLAHER (DUBLIN) LIMITED
and
THE MANUFACTURING, SCIENCE AND FINANCE UNION
SUBJECT:
1. Dispute concerning the Union's objection to a job evaluation
system for managers.
BACKGROUND:
2. The Company has had two previous major Hay-MSL job evaluation
exercises involving its managers. These were held in 1978 and
1985. The most recent panel consisted of two MSF managers, two
non-MSF managers, two Executive members and the Hay-MSL
Independent Chairperson. The Union claims the panel has existed
in this form since 1978 but this is contested by Management which
claims that the panels for the evaluations in 1978 and 1985 were
composed differently (details supplied to the Court). The present
dispute arises out of what the Union alleges to be Management's
unilateral changing of the composition of the panel.
Specifically, the Union is objecting to the fact that despite
receiving its objections in writing on the 13th October,
concerning the changes, the Executive sat and evaluated all
non-MSF jobs due for evaluation on the 15th October. The Company
rejects the Union's contention and claims that the majority of the
managers in the Company are non-MSF members and that it was acting
in accordance with their wishes. Local level discussions failed
to resolve the issue and on the 25th March, 1988, the Union
referred the matter to the conciliation service of the Labour
Court. A conciliation conference on the 19th April failed to
resolve the issue and on the 19th May the issue was referred to
the Labour Court for investigation and recommendation. A Court
hearing was held on the 10th June, 1988.
UNION'S ARGUMENTS:
3. 1. In late September/early October, 1987, the Union became
aware of moves to unilaterally change the composition of the
panel. On 13th October, 1987, the secretary of the MSF Group
Committee wrote to the Operations Director objecting to any
change in the panel and requesting a deferrment of any
evaluations pending negotiations and a satisfactory resolution
of any problems. This letter and formal objection was
completely ignored and on 15th October, the Executive sat and
evaluated all non-MSF jobs due for evaluation.
2. By the Company's own admission, both in writing and
verbally at conciliation, it changed the panels. This change
represents a blatant disregard for normal industrial relations
procedures as well as the long established and agreed method
of job evaluation. The Company unilaterally altered the
evaluation procedure knowing, at least two days in advance,
that the recognised Union with the negotiating rights for
managers objected to any change without prior consultation and
agreement.
3. In negotiations since this unilateral change the Company
has attempted to justify its actions by misrepresenting Union
membership figures for managers. This is a total nonsense
since in all there are 24 "Managers"; of these there are 4
Executives and 3 others (Marketing, Company Secretary and
Personnel) who would not, because of their management
positions, ever be in a union. This leaves 17 managers of
whom it appears at least 2 are "private" members of the Marine
Port and General Workers' Union (this is informally conceded
by Management which appears to be fully aware of the
situation). This leaves a final figure of 15 of which there
are 9 who are members of MSF. Thus MSF, despite the Company's
suggestions, represents a clear majority of managers.
4. The Company has also attempted to justify its action by
presenting the non-MSF (as opposed to non-union) managers as a
cohesive/ordered group. This is simply not the case as the
existence of the MPGWU among them would suggest.
5. It emerged since the job evaluations that the request for
a change in the job evaluation panel arose from a single
non-MSF manager at an Operations meeting. The request was
based on the fact that some non-MSF Managers simply did not
want to take part in evaluations. It was not based on any
suggestion that the existing system was unfair or had not been
successful in the past. Therefore, on the whim of one single
manager the Company threw out a negotiated, well-established,
fair and successful system without even considering MSF's
written objection and its request for a deferral.
6. The Company has sought to present itself as acting
"reasonably and in the interests of all." But such a claim is
totally inconsistent with the facts. The Union can only view
the Company's behaviour as an attempt to set aside its
negotiating rights and to undermine and eventually break its
representation among the managers. Further evidence of this
was the Company's response to a local meeting on the issue on
19th January, 1988. At the end of the meeting the Company
agreed to respond in writing to suggestions made by the Union
at the meeting. Instead of responding, the Company wrote to
all managers setting out its proposals for tripartite
discussions and recommending to Union members that they do
not refer the matter to the Labour Court. This letter was
dated 3rd February, 1988. It was not until 17th February when
the attempt to override the Group committee and the full-time
Union official had failed that the Company responded to the
meeting of 19th January.
7. The Union views this case as one of a fundamental
principle in industrial relations. It cannot accept that an
uncoordinated, disparate, minority group can be used to set
aside an agreed, negotiated system of job evaluation. The
Union has negotiation rights for managers and has never
exercised that right in such a way as to negatively affect
non-Union managers. The pre-October, 1987 system of
evaluation clearly illustrates this. However, the Company has
unilaterally imposed the will of a non-MSF minority on Union
managers and has effectively abolished its negotiation rights
in this instance.
8. The system of job evaluation and salary administration was
introduced in the Company on the basis of balance, openness,
equality, fairness and above all agreement. It was accepted
by the Union only on the condition that these objective
principles apply. The Company by its action has thrown out
every single one of these principles and has attempted to
implement a dual system which would be open to abuse.
9. The Union cannot accept any dual system. It cannot accept
that the Company can set aside an agreed system nor can it
accept that the evaluations conducted by the Executive of
non-MSF managers' job can without its involvement, be seen as
fair and objective. Therefore, it calls on the Court to
recommend the reconstitution of the pre-October, 1987, panel
and that all jobs evaluated by the Executive be re-evaluated
by this panel. Also it urges the Court to recommend that
there be no change in this panel without prior consultation
and agreement with the Union.
COMPANY'S ARGUMENTS:
4. 1. Out of 21 managers in the employment of the Company, 9 are
members of the Union. For these managers the Company has
negotiated terms and conditions with M.S.F. in the normal
manner. During the last four years, for non-M.S.F. managers,
in recognition of each individual's particular contract of
employment, any negotiations with a view to altering or
improving terms and conditions of employment have taken place
with each person individually.
2. The Company, when setting up its job evaluation panel for
1988, was not suggesting any change to the format from that
used in 1985. However, it had to respond when a request came
from one of the parties involved in the previous agreement;
and it did respond, but only after initial soundings made to
M.S.F. seemed positive towards it.
3. In the Company's opinion neither of the parties' views can
be ignored. This is why it offered non-M.S.F. jobs to be
evaluated by Executive and M.S.F. jobs to be evaluated by
Executive plus M.S.F. This option, which is fully agreed as
being fair by the Hay MSL Independent Chairman gives the
non-M.S.F. managers their wish and does not deny M.S.F.
members their right of representation which the Company fully
agrees with and supports.
4. The Union is now seeking to involve itself in negotiations
actually or potentially affecting non-union staff. For the
Company to accede to such a request would be to breach the
contractual duty of confidentiality existing between it and
non-M.S.F. managers and also to ignore their constitutional
right not to join a trade union.
5. The Union is insisting that it should join the evaluation
of all jobs. The Company rejects this and believes that in
law each individual employee has his own contract of
employment. Even if the terms and conditions appear to be
similar to those of other employees, the individual contract
cannot be altered or in any way interfered with without the
consent of the individual. In the case of unionised
employees, those employees seek to have the trade union
represent them and act as their agents in the varying or
alteration of terms and conditions. The Unionised staff and
the Union cannot seek to involve themselves in negotiations
which have or might have a bearing on the contracts of
employment of non-union staff. As stated above, non-union
staff have a right of dissociation under the Constitution
which must be respected by the Company. The Company believes
that to accede to the request of M.S.F. would be to breach the
Constitutional rights of its non-union staff.
6. The Union never gave a reason for rejecting the Company's
offer of tripartite talks, merely suggesting that it was
inappropriate under the circumstances. The Company wishes
that the resolution of this problem involve all three parties,
and firmly believes that this avenue provides the only real
basis for a lasting agreement. A solution cannot be imposed
on any of the parties which is what M.S.F. is seeking to do.
To impose a solution would be to ignore contractual and
Constitutional rights which the Company is not prepared to do.
RECOMMENDATION:
5. The Court is of the view that the Company erred in proceeding
with the job evaluation scheme without having first discussed with
the parties the constitution of the revised evaluation committee.
In the circumstances now existing as a result of the evaluation,
the Court sees no useful purpose being served by suggesting any
change at this point and recommends that the exercise should now
be completed. The Court also recommends that in order that all
future evaluations are carried out with the rights of all persons
involved being safeguarded, a joint meeting of three Executives,
three MSF and three non-MSF personnel should take place to discuss
and agree future policy on job evaluation.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
___________________________
4th July, 1988. Deputy Chairman
D.H./J.C.