Labour Court Database __________________________________________________________________________________ File Number: CD91133 Case Number: AD9134 Section / Act: S13(9) Parties: FRAWLEY & COMPANY - and - IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION |
Appeal by the Union on behalf of a sales assistant against Rights Commissioner's recommendation No. B.C. 167/90 concerning retrospective payments.
Recommendation:
7. Having considered the submissions made by the parties the
Court is of the opinion that in the circumstances of the case the
Rights Commissioner's recommendation is reasonable and should
stand.
The Court so decides.
Division: Mr O'Connell Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD91133 APPEAL DECISION NO. AD3491
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: FRAWLEY & COMPANY
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION
SUBJECT:
1. Appeal by the Union on behalf of a sales assistant against
Rights Commissioner's recommendation No. B.C. 167/90 concerning
retrospective payments.
BACKGROUND:
2. The Company is a retail department store and currently employs
forty four full-time workers. The current owners purchased the
Company in 1987. In April, 1990 the Union requested a meeting to
discuss outstanding entitlements due to the worker concerned. At
a meeting held in June, 1990 the Union made a claim for
outstanding entitlements due to the worker from previous temporary
employment periods as follows, retrospective payments of
#1,731.14, holidays due of 16.6 days at 37.50 hours per week and 6.6
days at 27.50 hours per week (holidays already received to be
deducted), and five Sundays worked to be paid at treble time. The
worker concerned was appointed on a full-time permanent basis on
27th October, 1989 and was placed at the top point of the
incremental scale for sales assistants. She had previously worked
with the Company as a temporary sales assistant from:
3rd December, 1987 - 24th December, 1987
28th July, 1988 - 19th January, 1989
23rd March, 1989 - 26th October, 1989
This claim was rejected by the Company on the basis that the
worker was correctly paid and when it took over the Company in
1987 it inherited the pay structure in existence. Further, that
a new pay structure agreed at a conciliation conference held in
September, 1989 was fully implemented by the Company on the due
date and cannot be applied retrospectively to this worker. This
agreement provided that -
(1) The part-time workers who are not on #15 per day rate
will have that rate applied to them with effect from 30th
June, 1989 until 31st January, 1990.
(2) From 31st January, 1990 the terms of the Dublin and Dun
Laoghaire Drapery Trade Registered Agreement will apply
to all staff.
3. As agreement could not be reached the matter was subsequently
referred to the Rights Commissioner's service for investigation
and recommendation. A Rights Commissioner investigated the
dispute on 29th January, 1991 ( the Union detailed its claim in
respect of outstanding entitlements due to the worker as
#2,503.22). The Rights Commissioner issued the following
recommendation on 15th February, 1991 -
"This is a very difficult issue in which I believe some
residue of argument resides within each side. Therefore I
would deem it appropriate that my recommendation should have
applicability to the worker only and be in the form of a
compromise position. I noted the conviction expressed by the
Trade Union that any recommendation of mine would not give
rise to repercussive claims.
I therefore recommend that Frawley & Company pay without
prejudice to the worker an ex-gratia sum of #750 and that
this be accepted by her in full and final settlement of all
claims on the Company in relation to the issue in question.
(the worker was referred to by name in the recommendation).
4. On 21st February, 1991 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 on 8th April, 1991.
UNION'S ARGUMENTS:
5. 1. The issue referred to the Rights Commissioner was "a
dispute between this Union and Frawleys concerning holidays,
overtime pay and arrears of basic pay due to the worker
concerned." In his recommendation the Rights Commissioner
apparently dealt with "a dispute as to the appropriate rate
applicable to the worker prior to the time she was appointed
on a full-time basis" (details supplied to the Court). The
basic rate of pay was at issue but there were additional
matters such as overtime rates and holidays. The Rights
Commissioner does not appear to have taken these claims into
account as no reference is made to them in his recommendation.
2. The Company maintains that the agreement reached at
conciliation in September, 1989 justifies the lower rate of
pay. In fact this conciliation conference involved first year
part-time staff only and was never intended as a justification
for depriving senior staff of the correct basic pay, agreed
overtime rates and annual leave. The September, 1989
agreement provides for the correct rates of pay to apply to
all staff from 31st January, 1990, as the worker concerned was
on the correct rate from October, 1989 she was clearly not
covered by that agreement. The Dublin and Dun Laoghaire
Drapery Trade Registered Agreement governs the wages and
conditions applicable to sales assistants and the conditions
agreed should be implemented. The worker should receive the
payment due to her of #2,503.22.
COMPANY'S ARGUMENTS:
6. 1. The current owners purchased the Company in 1987 and in
doing so inherited a pay structure which classified employees
into full-time permanent workers, temporary workers and
Saturday only workers (details supplied to the Court). The
agreement reached at conciliation in September, 1989 was fully
implemented by the Company on the due date. In its claim the
Union is seeking to circumvent the terms of an agreement
reached between the parties. Even if this agreement was set
aside the Union's calculations are based on the 6th point of
the scale despite the fact that the worker was employed by the
Company in November, 1987 and made permanent in October, 1989.
In addition, the number of weeks used by the Union in its
calculations is also incorrect. At the Rights Commissioner's
hearing the Company maintained its position that the only
valid claim was for annual leave. Although the Company was
surprised at the amount recommended by the Rights Commissioner
it was nevertheless prepared to accept the award. The Union's
appeal should be rejected and the terms of the Rights
Commissioner's recommendation upheld.
DECISION:
7. Having considered the submissions made by the parties the
Court is of the opinion that in the circumstances of the case the
Rights Commissioner's recommendation is reasonable and should
stand.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
_____________________
22nd April, 1991 Deputy Chairman.
U.M./J.C.