Labour Court Database __________________________________________________________________________________ File Number: CD91381 Case Number: AD9177 Section / Act: S13(9) Parties: IRISH STEEL LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's recommendation No. S.T. 226/91 concerning a claim for the loss of a shift.
Recommendation:
In all the circumstances I recommend that the Union's claim
succeeds on this occasion."
The Company rejected the Rights Commissioner's recommendation and
on 17th July, 1991, appealed it to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. The Court heard the
appeal on 21st August, 1991, in Cork.
COMPANY'S ARGUMENTS:
4. 1. The Union have argued that the phone call made by the
rostered chargehand did not constitute a phone call from the
Company, saying that the day chargehand should have made the
phone call. The Company maintains that the correct man, i.e.
the standby chargehand, was contacted, irrespective of who
made the phone call. For the Union to argue about which
chargehand should have made the call is stretching the
interpretation of who represented the Company. In any event
it has since emerged that the day chargehand did phone the
standby chargehand. This was not known at the time of the
Rights Commissioner's hearing. The Company believes that it
met its obligations and was not in breach of the agreement on
"call-ins."
2. Implicit in the Rights Commissioner's recommendation is a
requirement on the Company to operate multiple call-ins
(paragraph 4 of recommendation). This effectively brings
everyone back to a situation that has already proved
unworkable. The Company is now faced with a recommendation
that from an operational point of view is unworkable.
UNION'S ARGUMENTS:
5. 1. The Union has an agreement with the Company in relation to
cover for absences. That agreement is specific. If the
standby chargehand is not available the Company i.e. manager,
foreman or chargehand, is obliged to make one phone call to
ascertain if the worker on his rest day is available. This
was not done in this case and this is in breach of the
agreement.
2. One of the reasons put forward by the Company for not
calling the correct man, i.e. the 3rd off-shift chargehand, is
that he had returned to work in August, 1990, after a 15 month
absence through illness and the day chargehand assumed he
would not be interested in covering the shift in question. In
fact he was available and willing to cover the shift and had
covered a number of absences for other chargehands since his
return to work. He lost out on a shift because the Company
did not operate agreed procedures.
3. The day chargehand has stated that only one phone call was
made by him as the Company representative and that he erred in
not phoning the 3rd off-shift chargehand. The Union sees no
reason for any confusion regarding who should have been
called.
DECISION:
6. It is the view of the Court that the Union/Company agreement
should be clarified as to the detailed manner in which it is to
operate. Accordingly the Court records its agreement with
paragraph 5 of the Rights Commissioner's recommendation.
In the light of the new evidence produced at the hearing, however,
the Court upholds the Company appeal and so decides.
Division: Ms Owens Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD91381 APPEAL DECISION NO. AD7791
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: IRISH STEEL LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
recommendation No. S.T. 226/91 concerning a claim for the loss of
a shift.
BACKGROUND:
2. In 1988, a 4-shift rota system was introduced in the Company's
Mill and Materials Handling Sections. As the new shift system
developed it became apparent that there were difficulties in
obtaining shift cover, in that the Company often had to make
several telephone calls, or if workers had no phones send taxies
to workers homes, to obtain cover in the event of a rostered
worker being unavailable. Following discussion with the Union, it
was agreed that one phone call would be made by the Company to a
designated standby and if he was not available then the Company
would have the discretion to deal with the situation as it saw
fit.
3. On the night shift of 20th/21st January, 1991, the dockside
chargehand who was due on duty was unable to attend for work. He
telephoned the designated standby who was also unavailable. The
rostered chargehand then telephoned the Company to inform them
that neither he nor the designated standby were available. This
message was taken by the dockside checker who passed it on to the
day chargehand. On receipt of the message the day chargehand
telephoned the designated standby to check and discuss the
situation. The designated chargehand confirmed that he was
unavailable and suggested that the day chargehand contact another
off-shift worker to provide cover. The day chargehand then
instructed the checker to make arrangements for another off-shift
worker to cover the shift. The worker contacted to cover the
shift was a dockside crane driver. The Union contended that the
crane driver should not have been used to cover the shift. The
appropriate person should have been another chargehand. There are
only 4 chargehands in the dockside area and the Company had been
informed that 2 of these were unavailable, that left only the 3rd
off-shift chargehand to provide cover. The Union contends that
this is who should have been contacted. As a result of the crane
driver being used to cover the shift the correct man lost a shift.
Discussions between the parties failed to resolve the matter and
it was referred to a Rights Commissioner for investigation. On
5th July, 1991, the Rights Commissioner issued the following
findings and recommendation:-
"FINDINGS
1. The Company official involved acted in good faith when he
attempted to get the stand by to attend to cover the duty in
question.
2. However he erred in assuming that the claimant would not
be interested in performing the duty as he had only returned
to work on the 18/8/1990 and had been out for 15 months sick
leave.
3. However the Union could list seven days inc. 24/12/1990
when he covered such duties at short notice.
4. I have to find in the circumstances that the Company did
in fact breach the Agreement in that when the first person
did not cover then the Supervisor concerned should have
called the claimant to ascertain his availability.
5. Furthermore their is a need for clarity in regard to
which member of Supervision makes the telephone calls when
cover is needed.
RECOMMENDATION
In all the circumstances I recommend that the Union's claim
succeeds on this occasion."
The Company rejected the Rights Commissioner's recommendation and
on 17th July, 1991, appealed it to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. The Court heard the
appeal on 21st August, 1991, in Cork.
COMPANY'S ARGUMENTS:
4. 1. The Union have argued that the phone call made by the
rostered chargehand did not constitute a phone call from the
Company, saying that the day chargehand should have made the
phone call. The Company maintains that the correct man, i.e.
the standby chargehand, was contacted, irrespective of who
made the phone call. For the Union to argue about which
chargehand should have made the call is stretching the
interpretation of who represented the Company. In any event
it has since emerged that the day chargehand did phone the
standby chargehand. This was not known at the time of the
Rights Commissioner's hearing. The Company believes that it
met its obligations and was not in breach of the agreement on
"call-ins."
2. Implicit in the Rights Commissioner's recommendation is a
requirement on the Company to operate multiple call-ins
(paragraph 4 of recommendation). This effectively brings
everyone back to a situation that has already proved
unworkable. The Company is now faced with a recommendation
that from an operational point of view is unworkable.
UNION'S ARGUMENTS:
5. 1. The Union has an agreement with the Company in relation to
cover for absences. That agreement is specific. If the
standby chargehand is not available the Company i.e. manager,
foreman or chargehand, is obliged to make one phone call to
ascertain if the worker on his rest day is available. This
was not done in this case and this is in breach of the
agreement.
2. One of the reasons put forward by the Company for not
calling the correct man, i.e. the 3rd off-shift chargehand, is
that he had returned to work in August, 1990, after a 15 month
absence through illness and the day chargehand assumed he
would not be interested in covering the shift in question. In
fact he was available and willing to cover the shift and had
covered a number of absences for other chargehands since his
return to work. He lost out on a shift because the Company
did not operate agreed procedures.
3. The day chargehand has stated that only one phone call was
made by him as the Company representative and that he erred in
not phoning the 3rd off-shift chargehand. The Union sees no
reason for any confusion regarding who should have been
called.
DECISION:
6. It is the view of the Court that the Union/Company agreement
should be clarified as to the detailed manner in which it is to
operate. Accordingly the Court records its agreement with
paragraph 5 of the Rights Commissioner's recommendation.
In the light of the new evidence produced at the hearing, however,
the Court upholds the Company appeal and so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
_______________________
3rd September, 1991 Deputy Chairman.
B.O'N./J.C.