Labour Court Database __________________________________________________________________________________ File Number: CD9063 Case Number: AD9012 Section / Act: S13(9) Parties: CLAUS MICHEL LIMITED - and - IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION |
Appeal by the Company and the Union against Rights Commissioner's Recommendation No. S.T. 287/89, concerning the application date for the new chargehand rate of payment.
Recommendation:
5. The Court, having heard the appeals made by both parties, is
of the view that despite the alleged inaccuracy of the position
presented to the Rights Commissioner, circumstances have changed
since that time in a fashion that justify the Recommendation.
Accordingly, the Court considers that the particular circumstances
of this job justify application of the Rights Commissioners's
Recommendation.
The Court so decides.
Division: CHAIRMAN Mr Keogh Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD9063 APPEAL DECISION NO. AD1290
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: CLAUS MICHEL LIMITED
and
IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION
SUBJECT:
1. Appeal by the Company and the Union against Rights
Commissioner's Recommendation No. S.T. 287/89, concerning the
application date for the new chargehand rate of payment.
BACKGROUND:
2. The worker concerned is engaged as a cosmetician since 1983 at
the outlet franchised from Brown Thomas, Grafton Street, Dublin.
The worker orders merchandise for sales and deals with customer
queries and complaints. She keeps accounts on day to day
purchases by customers. The Union claims its member is entitled
to the chargehand rate because of her total responsibility. She
initially sought payment from Claus Michel in August, 1988.
Compensation for her responsibility was not granted at that time,
due to her employment arrangement with the Company and Brown
Thomas. The claim was the subject of a Rights Commissioner
investigation on 5th October, 1989 and 1st November, 1989.
His recommendation is as follows:-
"It is an unusual case in that the "part employer" is
not directly represented and yet according to the Union
is exercising a virtual veto in the matter.
I am not particularly influenced by this arrangement.
I am more interested in the intrinsic merits of the
case. The claim only refers to the claimant in Brown
Thomas and precedent within that shop has been
established by another firm, (Estee Lauder) which has
conceded the chargehand rate for similar work and
responsibilities to a sole salesperson.
In all the circumstances I recommend that she receives
the appropriate chargehand rate on the "retail sales
assistants - commission houses" pay scales under the
28th Round.
In relation to retrospection I am afraid I cannot
recommend anything significant, as the chances of the
direct employer recouping such retrospection from the
host employer would not be great. In these
circumstances I recommend that the new rate applies
from the first pay week in November, 1989."
This Recommendation was unacceptable to both parties and was
appealed to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. A Court hearing was held on the 14th
February, 1990.
UNION'S ARGUMENTS:
3. (1) The Company has four promotions (including Christmas) of
its comestics/perfumery during the year. It employs extra
temporary staff for such promotions. The worker has the added
responsibility for supervising and accounting on their
returns.
(2) The increased service being requested is putting
additional pressure on the worker concerned. It is imperative
that management make reasonable compensation for significant
changes.
(3) The Rights Commissioner, in his recommendation
recognised the justification of some compensation for the
worker concerned with the claim. However, the application
date for new rate is unfair and should be amended to be
backdated to 1st August, 1988. This amounts to #740 gross (in
addition to what the Rights Commissioner recommended).
EMPLOYER'S ARGUMENTS:
4 (1) Claus Michel Ltd has been operating in Brown Thomas for
22 years and has formed a good relationship with its workforce
and its client company. Salary is paid to the workers by
Claus Michel Ltd and Brown Thomas are invoiced for 50% of
payment.
(2) The Company rejects the claim that the claimant was
responsible for supervision, stock purchase etc., - that is
the responsibility of the buyer. With regard to the Rights
Commissioner's remarks on the Estee Lauder precedent it should
be noted that the Lauder counter manager supervises a three
person account and not a single employee as stated.
(3) The Company is satisfied that its worker is adequately
compensated. It has provided extra bonus to its workers by
offering holiday vouchers for sales targets incentives
achieved during the working year.
(4) If chargehand status and conditions is granted to the
cliamant other outlets will strive to achieve similar
concessions.
DECISION:
5. The Court, having heard the appeals made by both parties, is
of the view that despite the alleged inaccuracy of the position
presented to the Rights Commissioner, circumstances have changed
since that time in a fashion that justify the Recommendation.
Accordingly, the Court considers that the particular circumstances
of this job justify application of the Rights Commissioners's
Recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
9th April, 1990 ----------------
M.N./U.S. Chairman