Labour Court Database __________________________________________________________________________________ File Number: CD90134 Case Number: LCR12861 Section / Act: S67 Parties: NATIONAL COLD STORAGE LIMITED - and - MARINE PORT AND GENERAL WORKERS' UNION;AUTOMOBILE GENERAL ENGINEERING AND MECHANICAL OPERATIVES UNION |
Interpretation of clauses 5 and 15 of Company/Union Agreement of June, 1989.
Recommendation:
9. The Agreement which was reached between the Company and the
Unions in June, 1989 was referred to the Court for interpretation
of Clauses 5 and 15. Having considered the submissions of the
parties and having regard to the wording of the clauses in
question the Court upholds the Employer's position on the
agreement.
Division: Ms Owens Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD90134 RECOMMENDATION NO. LCR12861
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: NATIONAL COLD STORAGE LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
MARINE PORT AND GENERAL WORKERS' UNION
AUTOMOBILE GENERAL ENGINEERING AND MECHANICAL OPERATIVES UNION
SUBJECT:
1. Interpretation of clauses 5 and 15 of Company/Union Agreement
of June, 1989.
BACKGROUND:
2. As a result of a difficult trading period the Company entered
into negotiations with the Unions on redundancies and new work
practices. Following 18 months of negotiations agreement was
reached. The terms of the new work practices were contained in a
Comprehensive Agreement signed by the parties in June,l 1989. It
was also agreed to register the Agreement in the Labour Court.
3. However the Unions subsequently expressed reservations about
certain aspects of the Agreement and sought clarification on some
of the clauses. The issue was referred to the conciliation
service of the Labour Court on 24th October, 1989. Conciliation
conferences were held on 27th October, 1989 and 28th November,
1989. No agreement was reached and an 11 week official dispute
commenced on 15th December, 1989. Settlement terms were agreed on
2nd March, 1990 and work resumed. The settlement formula provided
that clauses 5 and 15 of the June, 1989 Agreement would be
referred to the Labour Court for investigation and recommendation.
A full hearing of the Court took place on the 30th April, 1990.
4. Clauses 5 of the Comprehensive Agreement reads as follows:
"Working Hours - As a condition of employment all employees
are available to work during the hours 6.00 a.m. to 10.00
p.m. The Company shall nominate the required starting and
finishing times required of employees during these hours.
The working day shall consist of 8.5 hours, including a 30
minute unpaid lunch break and two 15 minute paid tea-breaks.
Duration of breaks shall be strictly adhered to."
It is the Union's view that this clause introduces a two shift
system and as a consequence a claim for the payment of a shift
allowance of between 16% and 20% was lodged. The Company rejected
the claim on the basis that it interpreted the clause as allowing
a flexible working hours arrangement to meet business
requirements.
5. Clause 15 of the Agreement reads as follows:
"Employees shall be available to work reasonable overtime on
the request of the Company. There shall be no minimum number
of overtime hours worked in any situation or minimum crew of
employees to work any period of overtime. The number of
hours overtime and the number of employees required to work
overtime will be determined solely and exclusively by
management. Employees shall not object to the use of
contract labour, casual, temporary or part-time employees on
the grounds of loss of overtime or overtime opportunity."
The Union contends that this clause could be used with the
provisions of Clause 5 in order to split the existing full-time
staff into two groups and augment them with casual labour which
would result in the Company obtaining two-shift coverage without
payment. The Union also objects to the section of the clause
which states "Employees shall not object to the use of contract
labour, casual, temporary or part-time employees on the grounds of
loss of overtime or overtime opportunity" on the grounds that it
seeks to isolate a particular aspect of working conditions,
leaving it to the full discretion of management without any
recourse by the permanent staff to process a legitimate complaint
if such were to arise. The Company rejects the Unions'
interpretation of the clauses and maintain that the terms of the
Agreement (which was signed following lengthy and exhaustive
negotiations) are deliberately clear and direct in order to avoid
any misunderstanding.
UNIONS' ARGUMENTS:
6. 1. Clause 5 was agreed solely to provide for the availability
of workers, under the new flexible working arrangements,
during the hours 6 a.m. to 10 p.m. as circumstances required.
However it was the Company's insistence on the introduction of
flexible starting times from 6 a.m. if necessary which
resulted in the Unions' claim. At no stage was it agreed or
understood by the workers that the established working day of
8.30 a.m. to 5 p.m. would no longer exist. The recent long
strike is testimony to the strong feelings of the workers in
this regard.
2. The workers are available to work hours in excess of
normal working hours (8.30 a.m. to 5 p.m.) and to be paid at
the flat basic rate for the hours worked. They are not
prepared to accept a flexible working arrangement that has no
regard to the long established normal working hours. If the
Company wishes to introduce a 6 a.m. start to the 8 hour day
the workers are only prepared to accept this arrangement on
the basis of a two-shift system with the appropriate
allowances.
3. It is the Unions' view, in regard to clause 15, that it
could be used with the provisions of clause 5 to split the
existing full-time staff into two groups and augment them by
the employment of casual labour, resulting in a situation that
would give the Company the two-shift coverage, without the
necessity to pay a shift premium.
4. The clause could mean that the workers, by this Agreement,
have no right to object to the use or misuse of casual labour
now or in the future. It also gives the Company the right to
reduce manning levels in overtime. Having regard to the
nature of the work performed present manning levels are geared
to the special safety working requirements in the cold stores.
5. The Union objects to the section of the clause dealing
with contract labour, casual or part-time employees and
overtime on the grounds that it seeks to isolate a particular
aspect of working conditions leaving it to the full discretion
of management without any recourse to process a complaint by
the permanent staff if such were to arise. It also fails to
comprehend the significance of the full time workers'
contribution to the overall situation, in this Agreement, the
well established overtime rates.
6. The Agreement itself was negotiated in an atmosphere of
great uncertainty in the Company's future. The changes which
followed in working arrangements have made considerable and
drastic inroads into the existing conditions of employment.
Flexible working arrangements, reduced overtime rates and
redundancies have been conceded by the workforce in the belief
that they were securing jobs for the future.
COMPANY'S ARGUMENTS:
8. 1. Clause 5. Originally in early 1988 at the outset of
negotiations the Company sought a flexible working hours
agreement that would give cover between 6 a.m. and 10 p.m.
without additional cost in order that a full service could be
given to customers. The Union agreed in principle to the 6
a.m. to 10 p.m. cover but sought a 33 1/3% premium. This was
rejected by the Company. Negotiations followed which
resulted, during the course of a conciliation conference held
on 13th June, 1989, in both parties agreeing to a #10 premium
to all employees as follows:-
"A #10 premium payment (per week and pro rata daily), in
accordance with the conciliation officer's proposals
will apply in consideration of the total package and
specifically for working flexible hours 6 a.m. to 10
p.m. and overtime hours at flat rate in accordance with
clauses 5 and 15 of the Company/Union agreement."
This was accepted by the Union in a letter of 13th June, 1989
(details supplied to the Court). This clause is clear and
specific. The claim by the union for an additional premium is
in breach of the specific terms of the agreement and in breach
of the spirit and intent of that agreement. The Company is
confident that the Court will reject same and uphold the
Company's position.
2. Clause 15, as with every other clause in the Agreement,
was discussed, clarified and agreed with the Union prior to
signature. The Company is not prepared to change this clause.
In the past workers objected to the use of outside employees
on the basis that it reduced the overtime available to the
full time employees, even though at that time the work
required permanent employees to be fully utilised. In
addition, on the Unions' request the workers received
substantial lump sum compensation for buy out of overtime
(approximately #26,000 between 13 employees). To include the
wording sought by the Union into the clause would imply that
contract, temporary, part-time employees can only be used on
overtime when permanent staff are on overtime also. Equally
if any part-time or contract employees are working on overtime
then all core staff would also claim entitlement to work
overtime.
3. A comprehensive Company/Union agreement was negotiated and
signed for registration in the Labour Court following
exhaustive negotiations. The terms of this Agreement are
deliberately clear and direct in order to avoid any
possibility of misunderstanding or disputes about same in the
future. The Company respectfully submit, that were the Court
not to uphold its position on these clauses, it would
undermine the entire Agreement.
RECOMMENDATION:
9. The Agreement which was reached between the Company and the
Unions in June, 1989 was referred to the Court for interpretation
of Clauses 5 and 15. Having considered the submissions of the
parties and having regard to the wording of the clauses in
question the Court upholds the Employer's position on the
agreement.
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Signed on behalf of the Labour Court
Evelyn Owens
_________________________
22nd May, 1990. Deputy Chairman
M.D./J.C.