Labour Court Database __________________________________________________________________________________ File Number: CD89625 Case Number: LCR12647 Section / Act: S67 Parties: IRISH HELICOPTERS - and - IRISH AIR LINE PILOTS' ASSOCIATION |
Dispute concerning the interpretation of a seniority agreement and how it relates to a pilot's claim.
Recommendation:
9. In the submissions presented to the Court both parties have
attempted to justify their positions in relation to the present
issue principally by reference to article 1.1. and article 3.1 of
the Seniority Agreement. The relevance of article 3.1 depends on
the interpretation of article 1.1.
The Court is of the view that arguments on the grammatical
exactitude/inexactitude of an article in the Seniority Agreement
do nothing to establish whether or not there was any consensus on
its application in given circumstances or if a particular
interpretation should be regarded as reasonable in the context of
the agreement as a whole.
The Court has examined the agreement in its totality and notes
that there is specific reference in the body of the agreement as
to the application of items (a), (b) and (c) of article 1.1. and
the related application of item (d). There is no reference to the
application of item (d) in any other circumstances. Neither is
there any reference to the external recruitment to promotional
positions.
Having considered the various possibilities, the Court is of the
view that it is most likely that in the circumstances of the day
(1978) neither party adverted to the possibility of the present
problem arising. The fact that eleven years have passed without
the issue emerging tends to confirm that it was not of serious
concern to either party at the time.
Circumstances have changed significantly in the interim and
therefore the Court is of the view that the parties should now
jointly address whatever issues arise from the payment for
experience in the case of newly recruited pilots.
The case of Capt. Conneely can be dealt with on a once-off basis
in the course of discussions on the wider issue.
Division: CHAIRMAN Mr Keogh Mr Devine
Text of Document__________________________________________________________________
CD89625 RECOMMENDATION NO. LCR12647
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: IRISH HELICOPTERS
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
IRISH AIR LINE PILOTS' ASSOCIATION
SUBJECT:
1. Dispute concerning the interpretation of a seniority agreement
and how it relates to a pilot's claim.
BACKGROUND:
2. In early 1988 one of the Company's more experienced pilots
resigned from the Company. This reduced the number of pilots to
its lowest level for a number of years. As the Company was facing
a busy offshore season it decided to recruit an experienced
offshore pilot rather than recruit at co-pilot level.
3. The Company appointed Capt. Cronin and placed him on point 4
of pay scale one. The Association wrote to the Company expressing
its concern that the Company had broken with tradition in
recruiting Capt. Cronin and placing him on point 4 instead of
point 1 and that in effect he was now earning more than a Capt.
Conneely who was senior to him, which was in breach of the
Seniority Agreement.
4. The Company acknowledged that it may have been the first
instance whereby a pilot was recruited and placed on the pay scale
other than at point 1. However this was necessary to attract the
right calibre of person and the Company considered that point 4 of
the scale adequately reflected his experience and qualifications
and that his appointment was not in breach of the Seniority
Agreement.
5. The Association disputed this and lodged a claim for
approximately #250 on behalf of Capt. Conneely who was earning
less than Capt. Cronin which in the Association view would bring
the pay scales back into line in accordance with the Seniority
Agreement. The Company rejected the claim.
6. The matter was referred to the conciliation service of the
Labour Court on the 21st May, 1989. A conciliation conference was
held on 31st July, 1989. As no agreement was reached both parties
agreed to a referral to the Labour Court for investigation and
recommendation. A Court hearing was held on 2nd November, 1989.
ASSOCIATION'S ARGUMENTS:
7. 1. It is the Association's view that the Company's
interpretation of Article 1.1. of the Agreement is erroneous.
The Article reads as follows:
Article 1.1. The application of the seniority agreement will
be limited to:
(a) Conversion to aircraft types
(b) Promotion
(c) Redundancy
(d) Salary adjustments arising therefrom
The Company has argued that as (a), (b) or (c) do not apply in
this case and as under Clause (d) salary adjustments arose
therefrom then the Seniority Agreement does not apply. It is
the Association's view that as the last clause is prefixed by
(d) then the Seniority agreement applies. It means that
salary adjustments arising therefrom is subject to the first
sentence of the Article and not dependent on Clause (a), (b)
or (c).
2. The fundamental Article on which the claim is based is
Article 3.1. which states:-
"No pilot shall earn less than a pilot junior to him
where they are employed in a similar capacity. A
similar capacity shall mean instrument - rated pilots,
employed offshore."
It is acknowledged by the Company that the claim for
compensatory payment under the Article is valid providing that
the Seniority Agreement itself is deemed to apply in this
case.
3. Article 5.3. states:
"Nothing in this Agreement precludes the Company from
directing Pilots to specific aircraft types or functions
subject to the financial requirements of this Agreement
being met."
This Article in effect sets out the Company's right to manage.
The Association acknowledges this right as it is afforded
protection by the final phrase of the Article "..... subject
to the financial requirements of the Agreement being met"
which in this case means payment of approximately #250 to
Capt. Conneely.
4. Articles 3.1. and 5.3. are fundamental Articles and not
subject to revision prior to expiry of the Agreement. There
are provisions in the Agreement for Revision of any of the
Articles provided six months notice has been given by either
party. This option has not been exercised to date.
5. If the Company is allowed to pursue its present policy it
will in effect create a two-tier system which would undermine
the conditions of employment and career structure of the
people employed in the Company on a long term basis as other
workers would be able to use market forces to by pass the
Agreements in existence.
COMPANY'S ARGUMENTS:
8. 1. The terms of the "Agreement on Pilot Seniority" are very
specific. It is limited to (a) conversion to aircraft types,
(b) promotion, (c) redundancy and (d) salary adjustments
arising therefrom. It does not relate to the
recruitment/appointment of pilots. The Seniority Agreement
does not restrict the Company in any way in recruiting and
appointing pilots at co-pilot or captain grade. It does not
provide nor was it ever intended that it should provide any
provisions for adjusting existing pilots rates of remuneration
as a result of recruiting/appointing new pilots.
2. The Company must have the flexibility to recruit suitably
qualified pilots to meet customer requirements. In this
business, unlike the airline business, it is the customers who
draw up minimum requirements. Most of the Company's customers
are oil corporations who have very knowledgeable aviation
departments. As a result the customers minimum standards are
a lot higher than those laid down by the Department of Tourism
and Transport for an Airline Transport Pilot Licence (details
supplied to the Court). As a consequence not all helicopter
pilots are "equal." The Company must have the right to
recruit suitably qualified and experienced pilots without
restrictions. To concede this claim would place significant
additional costs on the Company and undermine its
competitiveness in maintaining existing contracts and restrict
its ability to tender for additional contracts at competitive
rates.
3. There are other helicopter companies who recruit pilots at
points on their pay scales other than starting point depending
on the pilots qualifications and experience. Also there is no
question of automatic increases to existing pilot staff as a
result of these appointments.
4. It is common practice throughout industry and commercial
activity to recruit and appoint personnel at positions on pay
scales which recognise previous experience and qualifications
without upsetting existing employees on lower points on the
pay scale. To restrict an employer to recruiting only at the
bottom end of a pay scale or to place unreasonable financial
penalties on an employer who does not recruit at the bottom of
a pay scale, would be totally unreasonable. The consequences
would be to seriously undermine the viability of the Company.
5. The recruitment of the pilot concerned on point 4 of the
scale does not in any way affect the seniority of existing
pilots. Seniority is determined by length of service within
the Company at co-pilot and captain levels. The position on
the pay scale does not affect seniority.
RECOMMENDATION:
9. In the submissions presented to the Court both parties have
attempted to justify their positions in relation to the present
issue principally by reference to article 1.1. and article 3.1 of
the Seniority Agreement. The relevance of article 3.1 depends on
the interpretation of article 1.1.
The Court is of the view that arguments on the grammatical
exactitude/inexactitude of an article in the Seniority Agreement
do nothing to establish whether or not there was any consensus on
its application in given circumstances or if a particular
interpretation should be regarded as reasonable in the context of
the agreement as a whole.
The Court has examined the agreement in its totality and notes
that there is specific reference in the body of the agreement as
to the application of items (a), (b) and (c) of article 1.1. and
the related application of item (d). There is no reference to the
application of item (d) in any other circumstances. Neither is
there any reference to the external recruitment to promotional
positions.
Having considered the various possibilities, the Court is of the
view that it is most likely that in the circumstances of the day
(1978) neither party adverted to the possibility of the present
problem arising. The fact that eleven years have passed without
the issue emerging tends to confirm that it was not of serious
concern to either party at the time.
Circumstances have changed significantly in the interim and
therefore the Court is of the view that the parties should now
jointly address whatever issues arise from the payment for
experience in the case of newly recruited pilots.
The case of Capt. Conneely can be dealt with on a once-off basis
in the course of discussions on the wider issue.
~
Signed on behalf of the Labour Court
Kevin Heffernan
______________________
28th November, 1989. Chairman
M.D./J.C.