Labour Court Database __________________________________________________________________________________ File Number: CD88596 Case Number: AD8856 Section / Act: S13(9) Parties: CADBURY IRELAND LIMITED - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION (A.T.G.W.U. |
Appeal, by the Union against Rights Commissioner's recommendation, No. DM61/88.
Recommendation:
5. The Court sees some merit in the Rights Commissioner's
original recommendation in relation to the filling of the vacancy.
However, a once-off exception must be acceptable to all concerned
and if it is not acceptable, then any party to the agreement has
the right to insist on the strict application of the agreement.
The Court therefore decides that the appeal against Rights
Commissioners recommendation DM61/88 be upheld and that the
Company should not implement DM143/87.
Division: CHAIRMAN Mr Heffernan Mr Devine
Text of Document__________________________________________________________________
CD88596 APPEAL DECISION NO.AD5688
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: CADBURY IRELAND LIMITED
and
AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION (A.T.G.W.U.)
SUBJECT:
1. Appeal, by the Union against Rights Commissioner's
recommendation, No. DM61/88.
BACKGROUND:
2. The A.T.G.W.U. and the Federated Workers' Union of Ireland
(F.W.U.I.) both represent workers in the Company. Early in 1988 a
dispute arose between the Company and the F.W.U.I. concerning the
filling of a vacancy for a packer on the No. 2 Twirl wrapping
machine. The Union claimed that a particular worker was entitled
to take up this position on the basis that her own stacking job
had been eliminated. The Company's position was that under the
Company/Union Agreement the position should be advertised and the
worker should remain in a stacking job. The matter was the
subject of a Rights Commissioner's investigation and in March,
1988, the Rights Commissioner issued the following Recommendation
(No. DM143/87) -
"(a) I consider that the proposal of the company in regard to
the filling of vacancies on No. 1 machine is in
accordance with the agreement with the Unions on the
filling of vacancies and I recommend that it be accepted
by F.W.U.I.
(b) I note that what the Company proposes in regard to No. 2
machine was accepted and implemented on the evening
shift for the same machine and in my view was the
correct way of applying the agreement. Nevertheless,
and as an exception in this particular case, I recommend
that the worker involved be placed on the Packing job on
No. 2 machine. I feel I can so recommend because it
will result in a job of the same grade in the Twirl
Plant being advertised and thus providing an opportunity
to other workers to apply for the vacancy".
This recommendation was accepted by the Company and the FWUI.
However, the ATGWU objected to the job on No. 2 wrapping machine
being filled by the named worker, as as exception, in accordance
with the terms of the recommendation. No agreement was reached
between the Company and the ATGWU on the issue and it was the
subject of a Rights Commissioner's investigation and
recommendation (No. DM16/88) dated July, 1988. This
recommendation stated -
"I have some sympathy with ATGWU in that a recommendation was
sought and made on an agreement to which it is a party as
well as the Company and FWUI. Ideally in such cases, the
three parties should participate but this would mean that
each union would surrender some of its independence. The
existing practice appears to be that each Union exercises its
right to make representations for its own members and any
change to a joint approach is for the two Unions to consider
and agree, if they so wish.
Having carefully considered the submissions of both sides to
this dispute, I feel that ATGWU should not pursue further its
objections to the filling of the packing job on No. 2 Twirl
Wrapping Machine, and I so recommend".
The ATGWU appealed this recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969 on 26th July,
1988. The Court herd the appeal on 5th September, 1988.
UNION'S ARGUMENTS:
3. 1. The Union is objecting to the named worker taking up the
position as this would constitute a breach of the
Company/Union Agreement. The Agreement states -
"The seniority working rules are as follows -
1. Advertising of Jobs
1.A. Permanent Grade B, C, D, E and F jobs will be
advertised throughout the site, except as noted
under 3B and 3C Spare jobs will be advertised.
3. Reduction of staff/job transfer.
3.B. When it is necessary to reduce the numbers working
in a particular Block the employees to leave the
Block will be those with least Company service. Any
vacancies arising will be filled by staff available
within the Block by advertising within the Block.
Those leaving the Block are obviously not eligible
to apply for a resulting vacancy, as it was their
shorter service which led to their leaving.
3.C. Where an employee becomes surplus to the
requirements of a Block he/she may be detailed to
any vacancy around the site. He/she will be
informed whether it is a temporary or permanent
transfer to the new Block. If temporary the
employee may be taken out of the Block at any time.
If it is a permanent transfer the employee will
become a member of the appropriate seniority group".
2. An exception to the Agreement cannot be made in this
instance to accommodate one individual. To do so would have
serious repercussive effects. The Company has very rarely
made exceptions in the past.
3. The fact that no actual disadvantage is caused to workers
is not a relevant point in this dispute.
COMPANY'S ARGUMENTS:
4. 1. The Rights Commissioner's recommendation No. DM61/88
upheld the interpretation of the agreement held by the
A.T.G.W.U. in relation to this issue. This is now clearly
established for the future.
2. There are many situations where the Company cannot
accede to the Union's requests to make once off exceptions
because of the effect on others or the circumstances of the
case. Such constraints do not exist in the present case.
3. Once off recommendations have been made in the past which
have benefited the A.T.G.W.U. only. These have not been
objected to by the F.W.U.I. or used as precedent by them in
other cases.
4. The exception made by the Rights Commissioner does not
put any other employee at a disadvantage. A job of the same
grade, on he same layout will still be advertised. In this
way, the same opportunity will be available to other
employees.
5. Six similar type jobs of the same or higher grade have
been advertised in this layout since April last, so that
there has been significant opportunity for anybody seeking a
job in this area to get one. In addition, in five of these
six cases, there was only one applicant for the job. Against
this background, the Company does not accept that any
employees can claim that the once off exception made by the
Rights Commissioner has put them at a disadvantage.
DECISION:
5. The Court sees some merit in the Rights Commissioner's
original recommendation in relation to the filling of the vacancy.
However, a once-off exception must be acceptable to all concerned
and if it is not acceptable, then any party to the agreement has
the right to insist on the strict application of the agreement.
The Court therefore decides that the appeal against Rights
Commissioners recommendation DM61/88 be upheld and that the
Company should not implement DM143/87.
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Signed on behalf of the Labour Court
19th September, 1988 John M. Horgan
A.K./P.W. Chairman