Labour Court Database __________________________________________________________________________________ File Number: CD89562 Case Number: LCR12525 Section / Act: S67 Parties: COAL DISTRIBUTORS LIMITED - and - MARINE PORT AND GENERAL WORKERS UNION |
Claim by the Union for the retention of the Company/Union Agreement of October, 1987 concerning two workers in the prepack area.
Recommendation:
The Court considers that the current agreement is not viable
and accordingly recommends it should be terminated.The Court
further recommends:-
(1) That the Company pay to the employees concerned loss of
earnings compensation in accordance with the basis of
calculation used in the Company and that the figure be the
subject of review after 2 years.
(2) That in view of the unique circumstances of this case
that each of the 2 workers concerned be paid an additional
ex gratia payment of #1,000 each. The Court notes that the
employees concerned will be employed in the manual section
of the Company.
Division: MrMcGrath Mr Collins Mr O'Murchu
Text of Document__________________________________________________________________
CD89562 RECOMMENDATION NO. LCR12525
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: COAL DISTRIBUTORS LIMITED
and
MARINE PORT AND GENERAL WORKERS UNION
SUBJECT:
1. Claim by the Union for the retention of the Company/Union
Agreement of October, 1987 concerning two workers in the prepack
area.
BACKGROUND:
1. Since 1985, the Company in its efforts to cut costs and
increase efficiency has adopted a policy of privatisation of its
operations, and has privatised many areas including all domestic
and tipper deliveries. In September, 1987, the Company attempted
to privatise the manual section of the prepack operation.
However, following a dispute on the issue and because of the
pressures which existed at the time a formal agreement was
arrived at between the parties in October, 1987. Under the terms
of the Agreement the Company is obliged to employ, when packing
is necessary, the two employees concerned and six independent
contractors, a total of eight packers. Over the past two seasons
the Company claims that this arrangement has proved unworkable
with numerous disputes between the two sets of operators and
between the operators and the Company. The Company now seek to
set aside the Agreement and to have manual packing in future
carried out by contractors. On the 10th of August, 1989 the
Company brought contractors into the prepack area and refused to
allow the two workers concerned into the area without first
obtaining Union permission to terminate the October, 1987
Agreement. As a result of the Company's action the two workers
left the site and were deemed by the Company to have been absent
without leave. A strike took place but was suspended in order
that talks might be held. The Company offered the two workers
concerned compensation in line with the previously established
formula i.e. a 2 year buy out of estimated loss, but that they
give up any rights they might have as regards manual packing and
in future carry out all duties relative to their positions as
general duties manual workers. Alternatively the Company offered
to consider applications from the workers for redundancy (details
of the proposed redundancy package supplied to the Court). The
Union rejected the proposals. Local discussions failed to
resolve the issue and the dispute was referred to the
conciliation service of the Labour Court on the 18th August,
1989. A conciliation conference was held on the 21st of August,
1989, but no agreement was reached. The dispute was referred to
the Labour Court for investigation and recommendation on the 22nd
August, 1989. A Court hearing was held on the 22nd August, 1989.
UNION'S ARGUMENTS:
3. 1. The Agreement has operated effectively since October,
1987 and was instituted as a result of a two week dispute
prior to that date. The Union has recently received a
letter from the Company outlining their desire to abandon
the Agreement and offering a formula for a level of
compensation. The Union would be prepared to accept an
alteration of the Agreement on the following basis. One
permanent employee for 3 contractors, Two permanent
employees for more than 3 contractors.
2. It should be noted that for the period during the
1988/89 season handipack was worked for approximately 10
months and that this work paid a premium of approximately
#700 per month to the workers concerned. This means that
over the period in practical terms the Agreement
represented a #7,000 per annum part of their salaries.
3. The Union is concerned that the Company has negotiated
an agreement with the representatives of the contractors
without reference in the first instance to the workers
concerned or the 1987 Agreement.
4. The Company claims to have a difficulty with the
operation of the Agreement as it relates to the provision
of product on market requirement basis. It should be noted
that paragraph 1 of the Agreement states that "permanent
employees have preference over independent contractors
throughout the Company."
5. The Union requests the Court to uphold the Union's
position and recommend that the the full practical
application of the Agreement be implemented by the Company.
COMPANY'S ARGUMENTS :
4. 1. In the past four years over one third of the Company's
tonnage volume has disappeared. Over the period of the
recession very significant cut-backs have had to be
effected. If this had not been done the Company would today
be operating at huge losses. The Company is obliged to
continue cost cutting in all areas including prepack. The
cost of manual packing using the employees concerned is
considerably more expensive than using outside contractors.
2. At present following a recent death and retirement in
the general duties manual section, there is a requirement
that the two workers concerned remain in that section
throughout the year, especially in the winter months which
are busiest. Both workers are guaranteed their permanent
positions in the G.D. manual section, together with the
opportunity to avail of overtime in that area. The Company
accepts that there will be a loss of overtime to the
workers concerned during the packing season and is offering
compensation to them in line with the formula which has
previously been established in the Company i.e. 2 year
lump sum buy out of estimated loss. The Company estimates
this figure to be #2,000 per man but this will be reviewed
after 2 years again in line with the formula, and any
shortfall will be topped up.
3. Before the attempted privatisation in 1987 the two
employees had worked on and off for only one season as
manual packers. They were previously employed as helpers
on the domestic bag cars. In 1985 they opted to transfer
to the G.D. manual section and accepted compensation of
#2,250. It should be noted that this was a much more
traumatic move for the men than that presently under
discussion.
4. The Company requests the Court to recommend acceptance
of the offer made by the Company to the Union on
compensation. This is a fair and constructive offer and has
been rejected by the Union, not on its merits but on a
position adopted in October, 1987.
5. The attempt to re-organise the prepack section is part
of the Company's publicly stated commitment to ongoing and
constructive change in all its areas of operation in order
to meet changing demands in the market place and remain
competitive.
The Court issued the following recommendation to the
parties by letter on 22nd August, 1989. "The Court
having considered the submissions of the parties recommends
that the two C.D.L. employees concerned be reinstated
forthwith and paid in respect of the days lost since the
commencement of the dispute. The Court further recommends
that the parties seek to negotiate amendment or termination
of the 1987 Agreement relating to the operation of the
prepack area, the negotiations to be completed on or
before 4th September, 1989. In the event that agreement
cannot be reached by that date the Court will make a
recommendation."
6. In accordance with the recommendation the parties
sought to negotiate the amendment or termination of the
1987 agreement relating to the operation of the prepack
area. These negotiations were unsuccessful, both parties
advised the Court of the outcome and sought a further
recommendation.
7. The Court having considered the issues raised by the
parties in their submissions and in the discussions
subsequent to the Labour Court recommendation of 22nd
August, 1989 have decided to issue the following
recommendation as a basis of resolving the
dispute.
RECOMMENDATION:
5. The Court considers that the current agreement is not viable
and accordingly recommends it should be terminated.The Court
further recommends:-
(1) That the Company pay to the employees concerned loss of
earnings compensation in accordance with the basis of
calculation used in the Company and that the figure be the
subject of review after 2 years.
(2) That in view of the unique circumstances of this case
that each of the 2 workers concerned be paid an additional
ex gratia payment of #1,000 each. The Court notes that the
employees concerned will be employed in the manual section
of the Company.
~
Signed on behalf of the Labour Court
Tom McGrath
_________________
15th September, 1989 Deputy Chairman.
T.O'D./J.C.
******************** CLARIFICATION 03-OCT-89 ********************
29th September, 1989
Mr G Whyte
Branch Secretary
M.P. & G.W.U.
14 Gardiner Place
Dublin 1
Dear Mr Whyte
I refer to your letter of 25th September, 1989 seeking
clarification of Recommendation No. 12525. The Court in it's
recommendation addressed the situation applying in the Pre-pack
area only (i.e. the specific agreement relating to the two
permanent staff and the contract staff). The Court in its
consideration of the submissions of the parties were of the view
that the circumstances attaching to the specific area which led
to the dispute situation were unique and should be addressed in
the manner recommended by the Court. The Court addressed solely
the position of 2 workers in the Pre-pack area and the "unique"
circumstances which surrounded them and which led to the dispute.
Any wider interpretation of the Recommendation would be
inconsistent with the intentions of the Court.
Yours sincerely
--------------------
Tom McGrath
Deputy Chairman
c.c. Mr B Rooney Operations Manager