Labour Court Database __________________________________________________________________________________ File Number: CD89706 Case Number: AD8969 Section / Act: S13(9) Parties: I.S. VARIAN LIMITED - and - FEDERATED WORKERS' UNION OF IRELAND |
Appeal by both parties against a Rights Commissioner's recommendation concerning short time working for four workers.
Recommendation:
5. Having considered the submissions from both parties the Court
is of the view that the Rights Commissioner's recommendation is
reasonable in the circumstances and should be accepted, with the
addition set out below, by both parties.
"The parties commence discussions in January, 1990, as to ways
and means of avoiding short time working in the future."
The Court accordingly rejects the appeals and upholds the Rights
Commissioners Recommendation with the above addition.
The Court so decides.
Division: Ms Owens Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD89706 APPEAL DECISION NO. AD6989
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: I.S. VARIAN LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
FEDERATED WORKERS' UNION OF IRELAND
SUBJECT:
1. Appeal by both parties against a Rights Commissioner's
recommendation concerning short time working for four workers.
BACKGROUND:
2. The Company is engaged in the manufacture of a wide range of
brushes and employs approximately 50 workers. During the past
four years because of a seasonal down turn in the industry the
Company has placed the four workers concerned on lay-off. The
Union claims that the proposal for short-time working was
unacceptable and that in future any proposal to introduce it would
be resisted unless the Company was willing to discuss ways of
maintaining the level of the workers' take home pay. The Company
rejected this proposal. The dispute was referred to a Rights
Commissioner for investigation and recommendation. On the 5th
October, 1989, the Rights Commissioner issued his recommendation
as follows:-
(i) "Company open to criticism for failure to give adequate
notice of short-time working.
(ii) Employees to accept commencement of short time working
for a maximum period of ten (1O) weeks from 9th October,
1989.
(iii) Company to extinguish/write off outstanding balances of
loans given at commencement of last period of short time
working.
(iv) Company to make ex-gratia payments of #75.00 to each of
the persons required to work short-time.
(v) Company to make available a loan facility of #100 to
each person required to work short-time. Loan is
repayable at rate of #3.00 per week on resumption of
full time working."
Both parties rejected the recommendation and on the 6th October,
1989 appealed it to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. A Court hearing was held on the
10th October, 1989.
UNION'S ARGUMENTS:
3. 1. The Company has adequate notice from the Union, over
twelve months, that short-time working could not be an
acceptable option this year. The Company choose to do nothing
in the intervening twelve months to address this problem.
Accordingly, the Union now rejects the Company's proposal to
again introduce short-time working.
2. The Company again has given extremely short notice of
their intention to introduce short-time working. It is
inconceivable that the Company was unaware of their order book
position until seven days before the desired introduction of
short-time working. Short-time working is a contrived
situation where the Company create an artificial crisis and
then uses the urgency of the situation to attempt to have the
Rights Commissioner, the Union, and everyone else involved to
agree to the Company's proposed arrangements. The Company has
had over a year to address the problem and has not done so.
3. The employees affected by this proposal are amongst the
longest serving employees in the Company. In two cases,
length of service is well over thirty years, the other two
employees have comparable service. To treat employees with
such service in such a cavalier and callous manner, is
unacceptable.
4. The Union has advised the Company, consistently, that
short-time working coming up to the Christmas period is an
unacceptable option. Nevertheless, the Company completely
ignored repeated representation and failed to address the long
term problem. The workers concerned are adamant that they
will not again be out of work coming up to Christmas. They
have indicated that they are willing to meet the Company half
way with regard to the proposed short-time work. They put a
proposal whereby their labour and tax rebates should be made
up to their take-home rate by the Company. The cost to the
Company of this proposal would roughly work out at #1,000 for
the entire duration of the short-time working. The Union
believes that this proposal is fair, addresses what the
Company claim is their need for short-time working and it also
addresses the workers' determination not to be deprived of
their income in the run up to Christmas. The Union believes
that the Company's failure to act over the last four years to
address this matter places on it a very heavy obligation to
meet the workers concerned at this time and to bear some of
the costs of the short-time working.
5. The Company consistently argue that they will not pay for
work not done and elevate this to the level of a principle.
This is a difficult argument to understand as the Company
already pays for bereavement leave, holidays, jury service and
sick pay. All of these are payments for work not done.
6. The Union, however, is not seeking payment for work not
done. It is seeking to have the Company share the
responsibility for the short-time working situation that has
arisen through their failure to act over the last number of
years to address this problem and to resolve it on the long
term. Accordingly, the Union believes that there is no
principle involved in this and the Company should be compelled
to meets its responsibilities and obligations to its employees
and to make arrangements to top up their state entitlements to
an acceptable level i.e. their take-home pay level.
COMPANY'S ARGUMENTS:
4. 1. Whilst the Company finds the broad terms of the Rights
Commissoner's recommendation acceptable it fundamentally
rejects the awards/payments of #75 to each of the employees
affected by the lay-offs as detailed in the Rights
Commissioner's recommendation.
2. The implementation of short time working is a very
necessary requirement to overcome the short term problems
being encountered by the Company and to protect the maximum
jobs. The Union would state that they are unwilling to accept
such arrangements based solely on the fact that the Company
have approached them about such arrangements "just once too
often." The Company on the other hand does not feel that it
has been unreasonable in dealing with the commercial problems
in such a manner.
3. The Court will be aware that within particular industries
down turns in trade occur on a seasonal basis necessitating
the implementation of lay off. The Company would not like to
be categorised in this bracket but recent trends in the
handcrafted area have given rise to this. The Company feels
that positive short term action with the co-operation of staff
is preferable to the elimination of this type of work with the
subsequent loss of all permanent jobs in this section.
However both parties have recognised that short time working
alone cannot address fully the longer term problem of the
decline of this particular aspect of the trade.
4. Currently discussions are in progress on the question of
one redundancy being effected in this area. While terms are
not as yet agreed the principle has been accepted by both
sides. Whilst the Company cannot guarantee that no further
short time working will be required as a result of this, the
rationalisation will provide more security for the remaining
jobs.
5. The Company has always made it clear to the Union that
people on lay off cannot be paid while they are not at work
and where no productivity is generated. The Court itself has
upheld this principle in many cases of this nature. It must
be remembered that short-time working itself has a detrimental
effect on the Company and given the choice the Company would
much prefer not to be in a position where it is necessary to
implement it.
DECISION:
5. Having considered the submissions from both parties the Court
is of the view that the Rights Commissioner's recommendation is
reasonable in the circumstances and should be accepted, with the
addition set out below, by both parties.
"The parties commence discussions in January, 1990, as to ways
and means of avoiding short time working in the future."
The Court accordingly rejects the appeals and upholds the Rights
Commissioners Recommendation with the above addition.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
____________________
10th October, 1989. Deputy Chairman
T.O'D/J.C.