Labour Court Database __________________________________________________________________________________ File Number: CD90547 Case Number: AD9051 Section / Act: S13(9) Parties: BAXTER HEALTHCARE S.A. - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. ST 148/1990 concerning a dispute over the transfer of 3 workers from one department to another.
Recommendation:
7. The Court has considered submissions made and in particular
the grounds for the Union's appeal against the Rights
Commissioner's Recommendation. It has come to the conclusion that
on the basis of the original objection, Management, in order to
accomodate that objection, were obliged to plan the manning of the
machine by other personnel and that therefore the Rights
Commissioner's recommendation was fundamentally correct and should
stand. The Court so decides.
Division: Mr O'Connell Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD90547 APPEAL DECISION NO. AD5190
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BAXTER HEALTHCARE S.A.
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. ST 148/1990 concerning a dispute over the
transfer of 3 workers from one department to another.
BACKGROUND:
2. In December, 1989, as part of a streamlining exercise, the
Company decided to move one machine from one Department to
another. The three people operating the machine originally
objected to the move to the new area because of overcrowding and
noise. However, the workers concerned moved with the machine to
the new Department. Later, when the Company, having regard to the
original objections, instructed the workers to transfer back, they
withdrew their objection and requested to remain in the new
Department. The Company refused their request on the basis that
on foot of their original objection 3 people were trained up on
the workers concerned machine and there was no position for them
there. They were transferred back to their old Department.
3. The workers objected to the move back. Discussions at local
level failed to resolve the issue and the matter was referred to a
Rights Commissioner for investigation and recommendation. The
Rights Commissioner investigated the dispute on 12th July, 1990.
The Rights Commissioner issued the following recommendation dated
14th August, 1990:-
"I am afraid I cannot help the claimants in this case. They
decided to object to the original transfer on environmental
grounds. This forced the Company to train replacements. At
the time of objection the replacements were expected to work
in conditions found to be offensive to the claimants. The
fact that the conditions turned out not to be as bad as
anticipated is not an adequate defence when management has
trained up the replacements for the task as originally
requested. Neither is the custom and practice argument of
any validity as the claimants originally, refused to follow
their machines.
In all the circumstances I recommend that the claimants should
accept the option of invoking the voluntary system as outlined
in paragraph A of the Company's submission and that they
should then accept the outcome of the exercise"
4. The Union appealed the Rights Commissioner's recommendation to
the Labour Court under Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal in Castlebar on 17th
October, 1990.
UNION'S ARGUMENTS:
5. 1. The Rights Commissioner's assessment of the workers
concerns regarding working in the new area is described as not
"an adequate defence" is rejected totally by the Union. Any
worker is entitled to register concern regarding their health
and safety in a new working area. The onus is on the Company
to placate such fears and demonstrate that all areas within
the Company comply with the relevant legislation. The
workers, while voicing their concerns, moved to the new area,
co-operated fully with the move, processed their objection
through procedures at no inconvenience to the Company.
Consequently the Company's assertion that the workers action
was disruptive is false as there was no work stoppage or loss
of production during the move.
2. The Rights Commissioner failed to grasp the Union's point
in relation to the custom and practice that normally operates
in such a situation in the Company. This involves the staff
being asked to co-operate with such a move. As in this case
both shifts were asked, both agreed except for the 1st shift
people lodging an objection to the noise level and
overcrowding in the new area, which they later withdrew, but
they were subsequently transferred back to their old
Department. The dispute arose because the Company chose to
ignore the workers request to remain with their machine. The
Union considers the Company's actions is lacking in the very
aspect they seek consistently from the workers, co-operation.
3. The Company have played on the health aspect of the
workers here concerned to attempt to justify their actions;
there is no substance to this.
4. The Union rejects the assertion that the Company had to
train up replacements. The Company had available a fully
trained crew to replace the workers here concerned. To the
best of the Union's knowledge only one person was trained up.
COMPANY'S ARGUMENTS:
6. 1. From the very outset the employees concerned were
disruptive and uncooperative and were not prepared to follow a
normal request. As these employees are medical cases and as
some other employees in their department are in a similar
situation the Company could not be seen to be giving
preferential treatment to 3 of them who happen to be less
senior than others in that department. They were offered an
alternative solution for discussion but they declined (details
supplied to the Court).
2. Employees in various departments in co-operation with the
Company have embarked on a cross training programme which
involves all employees in the department being trained and
capable of performing all jobs in that department. Allowing
these workers to transfer as they request would disrupt this
programme significantly.
3. In line with the Company/Union Agreement the Company has
the right to decide the equipment, the products to be
manufactured, the methods of manufacture and the assignment of
work to specific staff members or to specific machines. The
Company has offered to deal with the issue under the terms of
our transfer policy. This policy states that if the Company
requires a transfer of 3 people from one department to another
it asks for volunteers. If there are no volunteers, transfers
are activated on the last in first out basis, based on Company
seniority. In the event that too may volunteers then
transfers are activated on a most senior basis. The employees
involved are not satisfied to follow this well established
procedure.
DECISION:
7. The Court has considered submissions made and in particular
the grounds for the Union's appeal against the Rights
Commissioner's Recommendation. It has come to the conclusion that
on the basis of the original objection, Management, in order to
accomodate that objection, were obliged to plan the manning of the
machine by other personnel and that therefore the Rights
Commissioner's recommendation was fundamentally correct and should
stand. The Court so decides.
~
Signed on behalf of the Labour Court,
John O'Connell
__16th__November,___1990. ___________________
M. D. / M. F. Deputy Chairman