AD8829

Subject:
Appeal by the Company against Rights Commissioner's Recommendation No. ST 11/8.

Recommendation:
6. The Court, having carefully considered all the circumstances
and history of this case, is satisfied that in offering to alter
the shift finishing times the Company has made a reasonable
response to the claim and decides that the Company need not be
required to provide the free transport claimed. The Court
therefore upholds the Company's appeal.

Division: CHAIRMAN Mr McHenry Mr O'Murchu

Text of Document__________________________________________________________________

CD88296 APPEAL DECISION NO. AD2988

INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)


PARTIES: CADBURY (IRELAND) LIMITED

and

FEDERATED WORKERS' UNION OF IRELAND
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION

SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. ST 11/8.

BACKGROUND:
2. A total of 10 workers cover the late shift from 4.00 p.m. to
12.10 a.m. in Cadbury (Ireland) Limited. Due to an increase in
the level of street violence in the Coolock area, a claim was
lodged for the provision of free transport home from this shift
for the 10 workers involved. The Company's response to the claim
was to offer alternative shift arrangements, which would enable
the workers to avail of public transport (details supplied to the
Court). The matter was the subject of a Rights Commissioner's
investigation and the following recommendation (CM 18,043) was
issued on 22nd October, 1987:

"Where an employee chooses to live is his or her own business
and a person when employed is expected to find their own way
to and from work unless otherwise provided for in the
employment contract. And, in general, the hours of work are
at an employer's discretion. What is different in this case
is the exposure of a few of the employees to undoubted
hazards from street ruffians on their way home from work late
at night. Either of the Company's alternative shift patterns
would give them time to catch a bus for at least some of
their journey. The Unions should look again at this but if
it is not feasible something must be done for the very small
number who are at risk. Therefore the names, addresses and
routes of those few would have to be identified and agreed
and discussions ought then take place on how they can be
assisted. Any unresolved issue could be referred to a third
party."


3. Agreement was not reached and the matter was subsequently
investigated by another Rights Commissioner, who on 24th March,
1988, issued the following recommendation (S.T. 11/8):

"I too recognise that something must be done for the small
number involved. But in doing so it will have to be clearly
seen that there is no way in which the Company can be
expected to assume responsibility for every worker working
outside Public Transportation availability.

Accordingly I recommend that for a one year trial period the
Company should provide transport near home for those within
this group who do not possess motorised transport or have not
got it available to them.

It was agreed that the following named persons met this
criteria. Mickey Jordan, Joe Curley, Paddy Fowler, Brian
Gaughrin, Frank Brennan, Joe Walsh and Fred King.

The parties should meet in March, 1989 to review the position
then pertaining, or such earlier time if abuses or
difficulties arise."

On 11th April, 1988, the Company appealed this latter
recommendation to the Labour Court, on the basis that no account
was taken of its proposals to alter shift patterns to allow for
public transport to be used and that the recommendation, if
implemented, would create major problems/costs for the Company.
The appeal was heard in the Labour Court on 12th May, 1988.

UNIONS' ARGUMENTS:
4. 1. The Company's stated reason for not conceeding this claim
in the past was that there were too many workers involved and
that, therefore, it would be too costly for the Company to
provide transport. There are now only 10 workers left on the
shift in question, i.e. five on each week alternating with
each other. The numbers have reduced to within easy range of
the Company providing transport for the workers, yet at
meetings held at local level, the Company refused the Unions'
request for free transport or some form of subsidised travel
arrangements.

2. The number of workers concerned in the claim is small and
they are the only group who leave the factory at midnight when
no public transport is available.

3. The Company provides transport at other times when public
transport is not available, e.g. strikes.


4. Violence has increased dramatically in the Coolock area,
particularly against people coming home late at night. The
most recent incident was the tragic death of a young barman.
The Unions' believe that there is an obligation on the Company
to protect the well being of the workers concerned by
providing transport home from the shift where no public
transport is available.

5. The Unions' claim to have the workers driven home does not
entail a great deal of expense for the Company. A vehicle is
available and also a qualified driver.

6. The Company has expressed fears that the claim could have
"knock-on" effects if conceeded. The Unions' feels that this
concern has been adequately dealt with by the Rights
Commissioner who recommended in favour of seven named members
only.

7. The present contract of employment in Cadbury's was drawn
up in the early seventies when the area surrounding the
factory in Coolock was much quieter and workers could walk or
cycle home without fear for their safety which is not the case
today. The Unions' feels they have a right to negotiate a
change of the contract of employment, just as the Company has
sought changes.

8. In the light of the above, the Unions' are requesting the
Court to uphold the Rights Commissioner's recommendation, with
the amendment of having the transport for the seven named
workers made available on a permanent basis, as the Unions' do
not see a need for any review.

COMPANY'S ARGUMENTS:
5. 1. The Contract of Employment states that employees are
required to work nights, 3-shift, 2-shift, or days and will be
subject to the rules relevant to these shift patterns. It is
accepted that where early starts/late finishes are required,
transport has never been provided and employees have made
their own arrangements for going to and from work (details of
Contract supplied to the Court).

2. All of the proposals that the Company have put to the
Unions' fully satisfies their claim for the shift to end at a
time that public transport is available. If accepted, the
finishing time of the employees concerned would be comparable
to those of other employees throughout the site.


3. The Unions' have never put forward any valid reason why
the Company's proposals should not be implemented. They have
also refused to discuss the proposals through the grievance
procedure. The Company are totally flexible in starting and
finishing times within a 24 hour period. Despite this the
employees believe that by rejecting any reasonable proposal
they then should gain an advantage over all other employees
and the Company should provide them with transport.

4. This claim would have major knock-on effects if conceded.
Many employees start/finish work at times when transport is
unavailable. The Company, given its already serious
competitive position, cannot afford to have further overheads
charged to the price of its products.

5. If the shift finishing time of these employees had been
11.15 p.m., (which the Company is prepared to concede) no
claim would have been made as there could be no basis for a
claim. Therefore, if public transport is the issue it is
fully satisfied by the Company's proposals.

DECISION:
6. The Court, having carefully considered all the circumstances
and history of this case, is satisfied that in offering to alter
the shift finishing times the Company has made a reasonable
response to the claim and decides that the Company need not be
required to provide the free transport claimed. The Court
therefore upholds the Company's appeal.
~

Signed on behalf of the Labour Court

John M. Horgan
_____________________
30th May, 1988. Chairman
P.F./J.C.