Labour Court Database __________________________________________________________________________________ File Number: CD91171 Case Number: LCR13302 Section / Act: S67 Parties: IRISH BISCUITS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dispute concerning the status of two clerical workers.
Recommendation:
5. The Court has considered the submissions made by the parties.
It is clear that the workers concerned were employed on a
temporary basis and for a specific task. The fact that
completion of that work has lasted longer than expected and by
reason of the passage of time the workers have acquired certain
statutory rights does not of itself establish a right of entry to
the permanent workforce, admission to which is subject to
agreements with a number of unions in the plant on recruitment and
promotion.
The Court recommends however that in the event of suitable
permanent vacancies being available the Company, in assessing the
canditature of these staff, should take their length of temporary
service into account.
Division: Mr O'Connell Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD91171 RECOMMENDATION NO. LCR13302
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 67, INDUSTRIAL RELATIONS ACT, 1946
PARTIES: IRISH BISCUITS LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dispute concerning the status of two clerical workers.
BACKGROUND:
2. The workers concerned commenced employment with the Company in
1985 as temporary clerks in the time office. The Union claims
that they should be made permanent and that by virtue of their
lengthy service they are now legally entitled to that status.
Management has rejected the Union's claim on the grounds that the
workers were recruited to fill temporary vacancies in the time
office, which it claims has a finite lifetime by explicit
agreement with the Union. The workers were advised on numerous
occasions as to the temporary nature of their jobs. The Company
states that new technology, the operation of which has been
delayed over the years because of opposition from other unions,
will be implemented within twelve months and the time office
function will no longer exist. The Company maintains, that it has
employed 15 temporary workers since 1984, all others (with the
exception of the two workers concerned and one other recruited
recently) have gone to permanent employment with the Company,
externally, or returned to full-time education. The Company
states that the workers concerned were given the same advice as
the other temporary staff as to the temporary nature of their
employment. They have applied for a number of permanent positions
in the Company but have not been successful. The issue could not
be resolved at local level discussions and was referred to the
conciliation service of the Labour Court in August, 1990. A
conciliation conference was held on the 7th September, 1990 but no
agreement was reached. The dispute was referred to the Labour
Court for investigation and recommendation on the 20th March,
1991. A Court hearing was held on the 15th April, 1991.
UNION'S ARGUMENTS:
3. 1. The Union has had numerous meetings with Management to try
and resolve this issue. At one such meeting in May, 1990 the
Company admitted in relation to the employment status of the
two workers that the position was "irregular" and that the
Company had "bent the rules."
2. The Company subsequently stated by letter to the Union
that a "temporary" contract for one employee was enclosed and
that Management was exploring the issue of a suitable
permanent position and would contact the Union again.
3. The document claimed by the Company to be one for a
temporary position was, indeed, such but time had superseded
that contract and legally it had become a permanent one. The
document was dated 25th September, 1985 and after a years'
continuous employment, the temporary nature of it lapsed. The
worker, whose contract it was, is not in any of the excluded
list under Section 2(1) of the Unfair Dismissals Act, 1977 and
consequently she comes within the ambit of the Act as a
permanent employee, and is entitled under the Minimum Notice
and Terms of Employment Act, 1973 to the requisite amount of
notice of termination of employment, should that arise.
4. The contract of employment in this case is not the
document supplied but rather an implied contract, subject to
all the protections given in law, both common, written and
constitutional. The two workers are in the same position and
should have their permanent status acknowledged and the
benefits, deriving from that status, made to them.
5. The Company's interpretation of the legal position with
regard to the workers concerned is defective. In order that
it would continue to have been a temporary contract it would
have been necessary for the contract.
1. to have been in writing
2. that both parties had signed it
3. and that the provision to exclude the The Unfair
Dismissals Act, 1977 (Section 2(11)) had been
expressed.
The document offered by the Company as a "temporary" contract
fails as neither party signed it and there is no exclusion
clause.
6. Because the two workers concerned have been excluded from
the status of permanency they have been excluded from the
pension scheme, access to the medical scheme up to last year,
proper payments, access to the sick pay scheme, and benefiting
from additional service holiday - a loss of two days after
five years' service.
7. The Union is asking the Court to establish clearly the
status of the two workers concerned and to recommend that the
benefits of that status - hitherto denied to them - be given
to them from the day they became entitled to it, namely one
year after they started work with the Company.
COMPANY'S ARGUMENTS:
4. 1. The Union has entered into a binding agreement whereby the
time office positions are redundant and under which redundancy
payments were made in compensation to members of the Union.
The jobs will no longer exist when the appropriate technology
is commissioned. In consequence if the temporary workers were
to be made permanent it would of necessity have to be in other
jobs in other areas. They have not been successful in their
application for such positions by reference to fair and
unbiased selection criteria. The Company is of the view that,
subject to compliance with the law, appointment of an
individual to a permanent position is a matter which must be
determined solely by the Company and not by a third party
Union or otherwise.
2. The Company is obliged by its agreements and undertakings
with and to the Unions representing not only salaried staff
but also those representing hourly paid workers to advertise
permanent vacancies in the first instance to permanent
employees throughout the Company. On the foot of such
agreements with its several Unions therefore, the Company
could not unilaterally appoint these temporary staff to
permanent positions. Temporary staff are excluded from
application for such permanent positions until permanent staff
in all areas of the Company have firstly been considered.
3. The Company bears no malice to the two workers concerned
on the contrary it has afforded access and encouraged them to
apply for the permanent positions they seek; however
appointments must be made on the basis of suitability and the
capacity to perform the requisite service or task. When the
workers concerned failed the selection process the Company
continued to extend the temporary arrangement in spite of
their lack of success in progressing to other positions inside
or outside the Company as all other temporary staff have done.
4. The Company must assert that it alone must have the
prerogative to appoint its staff, a third party will not bear
the consequences of an imprudent selection decision. The
Company has to date and will continue to extend to these
temporary workers, all rights provided in law arising from the
duration of their temporary work with the Company.
5. The Company might well have terminated the temporary
contracts of the workers concerned, however it chose the
sympathetic approach and extended the opportunity of
employment to them in the hope that they might secure
permanent employment elsewhere if not within the Company.
RECOMMENDATION:
5. The Court has considered the submissions made by the parties.
It is clear that the workers concerned were employed on a
temporary basis and for a specific task. The fact that
completion of that work has lasted longer than expected and by
reason of the passage of time the workers have acquired certain
statutory rights does not of itself establish a right of entry to
the permanent workforce, admission to which is subject to
agreements with a number of unions in the plant on recruitment and
promotion.
The Court recommends however that in the event of suitable
permanent vacancies being available the Company, in assessing the
canditature of these staff, should take their length of temporary
service into account.
~
Signed on behalf of the Labour Court
John O'Connell
4th June, 1991 ________________
T.O'D. / J.C. Deputy Chairman.