Labour Court Database __________________________________________________________________________________ File Number: CD89443 Case Number: AD8947 Section / Act: S20(1) Parties: BRAUN (IRELAND) LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Union against Rights Commissioners Recommendation No. BC81/89 concerning shift rota as it pertains to craft maintenance workers.
Recommendation:
10. The Court has given very careful consideration to the
arguments made by the parties in respect of this appeal. In
particular it has considered the points made by the Union in
respect of effective amendment of the terms of the Company/Union
Agreement and has come to the following conclusion. The Agreement
provides in its disputes clause a mechanism to settle differences
between the parties and this mechanism was used in this instance.
Whilst it is true that the use of this clause does not in most
cases result in a change in the substantive terms of the general
agreement it is clear that the possibility is envisaged
particularly in matters of interpretation. For this reason
therefore while the outcome of proceedings before the Rights
Commissioner had unusual consequences the Court does not find
these proper grounds to invalidate or amend the recommendation
especially as the Commissioner made a particular effort to have
the parties negotiate directly.
On the merits of the issue itself the Court does not consider that
any change in the Recommendation is warranted as it is proper to
allow the Company to adapt to normal ongoing change. The Court
therefore decides that the Recommendation should stand.
Division: Mr O'Connell Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD89443 APPEAL DECISION NO. AD4789
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BRAUN (IRELAND) LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioners
Recommendation No. BC81/89 concerning shift rota as it pertains to
craft maintenance workers.
BACKGROUND:
2. The original position of craft maintenance workers involved 3
fitters and 2 electricians. They worked a two or three shift
system as required (details supplied to the Court). Following
training on the operation of moulding machines one fitter and one
electrician were deployed in the moulding department on an 8.00
a.m. to 4 p.m. day shift basis.
3. In April, 1982 the electrician involved on the day shift left
the Company. The Company were of the opinion that there was no
need for this particular shift and informed the Union accordingly.
This led to a dispute which was referred to a Rights Commissioner.
As a result the following shift rota was agreed:-
7.00 a.m. to 3.00 p.m.; 8.00 a.m. to 4.00 p.m.; 8.00 a.m. to
4.00 p.m.; and 3.00 p.m. to 11.00 p.m. This was subsequently
incorporated into the Company/Union Agreement effective March,
1983.
4. In November, 1988 the workers concerned were placed on day
work. The Union expressed their reservations about day work from
a safety point of view, safeguards for production workers, and the
requirement for maintenance cover on shift. In December, 1988
meetings took place between the parties at which the Company
advised the Union that in future it would be requiring maintenance
shift cover on a two or three shift basis. The Union informed the
Company that it had no objection to reverting back to shift work
provided it was in accordance with the agreed rota.
5. Further meetings took place between the parties at which no
agreement was possible. The matter was referred to a Rights
Commissioner for investigation and recommendation. Following an
investigation held in April, 1988 the Rights Commissioner
recommend that the parties should endeavour to resolve the issue
by negotiation and that in the event of failure to reach agreement
the matter should be referred back to him for recommendation.
6. Following a further investigation the Rights Commissioner
issued the following recommendation dated 2nd May, 1989.
"Findings
Having considered these further submissions and having
seperated the parties to seperate rooms and pursued my
investigation I have come to the following conclusions:-
1. I note that the trade union and its members made a genuine
endeavour to respond to the Company's needs within the
context of the situation as they saw it.
2. I also note that this response was not deemed satisfactory
by the Company insofar as the remedy proposed by the trade
union and its members could be regarded as an ad hoc one
and thus would required to be renegotiated in the event of
circumstances changing.
Concession to management of its requirement to maintain
parity of operations, shift rota wise, with other
employees in the factory would deny some of the craft
employees of a reasonable quota of overtime opportunities.
Here again management has been quite specific. It has
stated to me that each year it will take such measures as
are necessary to ensure that equality of overtime
opportunity is available to all craft employees.
. Recommendation
In the light of the above I recommend that the craft
employees should now adopt, on a permanent basis, the same
shift rota arrangements as are applicable with other
employees in the factory i.e. 7 a.m. to 3 p.m. - 3 p.m. to 11
p.m. - 11 p.m. to 7 a.m. This conversion to the overall
shift rota arrangement to be made in the context of the
following firm assurances by management
(a) equality of overtime opportunity for all craft employees
(b) that shiftwork for craftsmen be available until the end
of 1989
(c) that in September, 1989 discussions to commence with the
trade union with a view to establishing the implications
for shift work of market projections for 1990
(d) that exposure to the widest possible work experience be
maintained for craftsmen within Braun.
I do urge on both parties to give the most earnest
consideration to this recommendation which I believe to be in
the best interests of both the company and its craft
employees."
7. The Union appealed the above recommendation to the Labour
Court under Section 13(9) of the Industrial Relations Act, 1969,
on the basis that it removed part of the Company/Union Agreement
without consent. The Court heard the appeal on the 15th June,
1989.
UNION'S ARGUMENTS:
8. 1. The recommendation gives the Company 100% of what they are
seeking and does not at all reflect the Union's position.
This surprised the Union bearing in mind the position adopted
in the first recommendation, when the Rights Commissioner
recognised and accepted -
1. The Union's wish to uphold agreements honestly
entered into.
2. In 1983 both parties willingly embodied a variation
of the overall shift rota requirements into the
agreements.
3. The Commissioner sought and got definite assurances
from the Union on providing appropriate cover for all
shifts and that such cover would not require the
employment of additional craftsmen.
The findings in (1) of the final recommendation accept that
the Union delivered on its commitments.
Point (2) of the findings then totally sets aside the Union's
position on the basis that future change may require
negotiations.
Point (A) of the recommendation refers to a situation which is
already well established. Overtime was not an issue.
Point (B) confirms an already established fact, i.e. that
shift work is required presently.
Point (C) - under the agreement the Company have the sole
right to dictate when shifts are operated. This was not the
issue. The issue is the recommendation that craft workers
should now adopt, on a permanent basis, the same shift rota
arrangements as other employees. This sentence breaches the
existing agreement.
Point (D) - already in place.
2. In past negotiations the Company have always quoted the
Company/Union Agreement. This position has been endorsed on
many occasions by third parties (details supplied to the
Court).
3. The Company's handling of this issue leaves a lot to be
desired. Initially, there is a requirement for 3-shift cycle.
When this was not agreed day work was introduced. When the
Union accepted the day work, (as per agreement), the shift
work was again required.
4. Any suggestions by the Union to give the required cover
while discussions were taking place were rejected. It appears
that the issue of adequate shift cover is secondary, the main
issue being the company intention to achieve a unilateral
breach of the agreement.
5. The agreement must remain in tact, unless and until, it is
changed by mutual agreement. This principle relates to all
aspects of the agreement concerning all our members.
COMPANY'S ARGUMENTS:
9. 1. With new Production requirements the Company will be
required to provide two/three shift cover in a number of
areas, i.e., Assembly, Moulding, Coil Cording Area, Gas
Cartridge Area. Pertinent to these needs the Maintenance
Department must provide immediate support and an efficient
service to Production.
2. All Craftspeople on joining the Company agreed as part of
their conditions of employment to work on a two or three shift
rota as required by the Company. There was agreement in 1982
to change the existing rota. This rota is no longer
appropriate to manufacturing requirements and another change
is necessary. Continual change and updating is an essential
requirement of an organisation of this size and if the Company
is to maintain a competitive position in a difficult market
then it is essential that there is a commitment by the Union
to normal on-going change.
3. The position adopted by the Union gives rise to concern
because the ability to change is an essential feature of
survival. The Company cannot afford to carry structures that
are not appropriate to it's manufacturing requirements. It is
reasonable to expect and require greater flexibility in a
process as large and complex as Braun Ireland Limited.
4. Since March of this year, the Company have hired an
additional 150 staff (approximately) to date to meet
production requirements. The maintenance Department must be
in a position to provide support and an efficient back-up
service to production. To facilitate this the Company must
have the flexibility to have two and/or three shift cover to
bring the support group in line with production needs.
DECISION:
10. The Court has given very careful consideration to the
arguments made by the parties in respect of this appeal. In
particular it has considered the points made by the Union in
respect of effective amendment of the terms of the Company/Union
Agreement and has come to the following conclusion. The Agreement
provides in its disputes clause a mechanism to settle differences
between the parties and this mechanism was used in this instance.
Whilst it is true that the use of this clause does not in most
cases result in a change in the substantive terms of the general
agreement it is clear that the possibility is envisaged
particularly in matters of interpretation. For this reason
therefore while the outcome of proceedings before the Rights
Commissioner had unusual consequences the Court does not find
these proper grounds to invalidate or amend the recommendation
especially as the Commissioner made a particular effort to have
the parties negotiate directly.
On the merits of the issue itself the Court does not consider that
any change in the Recommendation is warranted as it is proper to
allow the Company to adapt to normal ongoing change. The Court
therefore decides that the Recommendation should stand.
~
Signed on behalf of the Labour Court
John O'Connell
_______________________
29th June, 1989 Deputy Chairman.
M.D./J.C.