Labour Court Database __________________________________________________________________________________ File Number: CD89713 Case Number: LCR12669 Section / Act: S67 Parties: CADBURY IRELAND P.L.C. - and - ELECTRICAL TRADES UNION |
Claim by the Union on behalf of 37 electricians concerning payment for 2 days work stoppage and possible loss of attendance bonus.
Recommendation:
6. Having regard to the existence of a wholly admirable agreed
procedure designed to avoid industrial action it is the opinion of
the Court that both sides were at fault in the manner in which the
issue was dealt with - the Union in its refusal to implement the
procedure and the Company in introducing the disputed practice
before giving notice of its intention to use the agreed procedure.
In the circumstances the Court recommends that half the period of
the stoppage be paid for by the Company and half the time lost be
included for calculation of the attendance bonus.
Division: Mr O'Connell Mr Collins Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD89713 RECOMMENDATION NO. LCR12669
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: CADBURY IRELAND P.L.C.
and
ELECTRICAL TRADES UNION
SUBJECT:
1. Claim by the Union on behalf of 37 electricians concerning
payment for 2 days work stoppage and possible loss of attendance
bonus.
BACKGROUND:
2. During the installation of new equipment on 4th May, 1989, a
dispute arose when an electrician from the German company
supplying the equipment worked on the equipment himself. When the
shop stewards objected, the man concerned ceased what he was
doing. At a meeting held on Friday 5th May, 1989, the Union took
the view that the work could only be done by the Company's
craftsmen as it was merely installation type work and not
specialist type work. The Company's position was that as it was
part of commissioning, the terms of a 1981 Agreement applied. The
relevant provision in the Agreement states:
"...in the case of commissioning overseas personnel without
acceptable credentials, the Company will delegate an
appropriate Cadbury tradesman to work alongside the person."
The Company contended that the foreign craftsman should be allowed
to work on his tools once a Company electrician was working
alongside him. The Union believed that this would be in breach of
the Agreement and that the foreign craftsmen should work with the
Company electrician, in a supervisory or advisory capacity. On
Monday, 8th May, 1989, the foreign craftsman commenced working on
the equipment again. Immediate discussions between the parties
failed to resolve the issue and the electricians stopped work.
3. The Company proposed that the "Peace Agreement" should be
operated. Under the terms of that Agreement if a dispute arises.
a 10 day cooling off period is initiated, if there is a difference
between the parties as to what constitutes the status quo during
this period then the Union's interpretation operates. If during
this 10 day period it is not possible to agree on the issue or an
operating practice at local level, the method of operating, while
the issue is being progressed through procedures, would then be
referred to an Adjudicator for an interim decision. The
Adjudicator's recommendation would not be used by either party as
a precedent in any later stage of the procedure or at third party
hearings.
The Union believed that it was not appropriate to refer the matter
to a third party for arbitration. The Union did not want the
Agreement to be used as a tool to bring about a change in custom
and practice. Any change should be preceded by full consultation
and agreement. Further discussions took place on 9th May, 1989,
resulting in an agreement being reached whereby the electricians
returned to work and the parties agreed to discuss the issues.
These further discussion commenced on 12th May, 1989, and resulted
in a comprehensive agreement on the use of foreign personnel.
However, agreement on the matter of loss of pay for the two day
stoppage i.e. 8th and 9th May, 1989, and potential loss of bonus
could not be achieve and on 13th July, 1989, the issue was
referred to the conciliation service of the Labour Court. No
agreement could be reached at a conciliation conference held on
9th October, 1989, (an earlier date was postponed at the Union's
request), and the matter was referred to the Labour Court for
investigation and recommendation. The Court investigated the
dispute on 9th November, 1989.
UNION'S ARGUMENTS:
4. 1. The clause concerning "overseas personnel" has been
interpreted in a particular way, by both sides, for a number
of years, i.e. that Company electricians do the manual work
with the foreign personnel advising. Any attempt to
re-interpret the clause after such a long time of its
operation can only be viewed as an attempt to change the
ground rules. The Company precipitated the stoppage by
breaking the existing custom and practice. The Company was
fully aware of what the inevitable response to their actions
would be.
2. Given that the electricians' actions were taken in defence
of the status quo and in the face of the Company's refusal to
maintain the status quo it is unjust that they should have to
suffer. The electricians are at a loss which they were
effectively obliged to incur. Where the Company breached its
obligation to respect the status quo, it should not have the
facility of causing loss to the workers.
3. There is not a huge amount of money involved in the claim
as not every electrician incurred a loss. Some were on
holidays, sick leave, rest days or otherwise absent with
leave. The electricians operate shift rosters and as a result
not all of those who were in work suffered a loss of two days'
pay. An attendance bonus is given to workers with less than
3% absence in any three month period. Since the Company is
including the two days as absences, it increases the
possibility of losing the bonus. This the Union believes is
unjust.
4. The Company has adopted certain dogmatic principles of not
paying workers for stoppages. The Union believes that
circumstances make cases. Because the Company may be unable
to agree to change their stance, fearing repercussions, the
Union believes the Court is the only body that can examine the
situation on its merits. Concession of the claim would also
result in an improvement in industrial relations in the
Company.
COMPANY'S ARGUMENTS:
5. 1. It has never been the practice in the Company to pay
workers for lost time resulting from industrial action.
2. In this particular case the Union could have invoked the
terms of the "Peace Agreement" or allowed the Company to do
so, thus avoiding the need to take industrial action. The
Union, however, declined taking this option. The "Peace
Agreement" should have been invoked and the issue then
referred through agreed procedures.
3. The rules in relation to the attendance bonus set out the
types of absences that are allowable for payment of the bonus
and time lost through industrial action is not one of these
types of absences. (Details provided to the Court).
4. The Company, in support of its position, would like to
draw the Court's attention to two separate claims for payment
for time lost as a result of industrial disputes which were
the subject of Rights Commissioner hearings. In both cases
the Rights Commissioner found in favour of the Company
(CM/12937 and R.R. 147/83 refer).
RECOMMENDATION:
6. Having regard to the existence of a wholly admirable agreed
procedure designed to avoid industrial action it is the opinion of
the Court that both sides were at fault in the manner in which the
issue was dealt with - the Union in its refusal to implement the
procedure and the Company in introducing the disputed practice
before giving notice of its intention to use the agreed procedure.
In the circumstances the Court recommends that half the period of
the stoppage be paid for by the Company and half the time lost be
included for calculation of the attendance bonus.
~
Signed on behalf of the Labour Court
John O'Connell
__________________________
4th December, 1989 Deputy Chairman.
B.O'N./J.C.