Labour Court Database __________________________________________________________________________________ File Number: CD91387 Case Number: AD9185 Section / Act: S13(9) Parties: H.B. ICE CREAM LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. B.C. 229/91.
Recommendation:
5. Having considered the submissions made by the parties the
Court is of the opinion that the Rights Commissioner's
recommendation was correct in the circumstances and should stand.
The Court so decides.
Division: Mr O'Connell Mr Collins Mr Rorke
Text of Document__________________________________________________________________
CD91387 APPEAL DECISION NO. AD8591
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: H.B. ICE CREAM LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. B.C. 229/91.
BACKGROUND:
2. The worker concerned is employed as a fork-lift driver in the
dry goods store where all raw materials, ingredients and packaging
for ice cream is kept. He has been employed in the Company for
the past fourteen years. In addition to his own duties the worker
deputises for the foreman when he is absent from the store. The
Union claims that the rate of pay of the worker should be
increased to the same level as that of a machine operator in the
factory (an increase of approximately £10 p.w.). The Union based
its claim on the fact that there has been a significant change in
the duties of the worker in recent years. The Company rejected
the claim. The Union referred the issue to a Rights Commissioner
for investigation on the 24th June, 1991. On the 11th July, 1991
the Rights Commissioner issued his recommendation as follows:-
"In the light of the above I must hold that the claim by the
trade union fails and I recommend accordingly.
I recommend that whenever the worker fills in for the foreman
when he is absent he should, in common with other employees
in similar circumstances receive 100% of the differential."
(The worker was named in the Rights Commissioner's
recommendation). On the 25th July, 1991 the Union appealed the
recommendation to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. A Court hearing took place on the
5th September, 1991.
UNION'S ARGUMENTS:
3. 1. The worker concerned unloads trucks and arranges stocks.
This involves breaking pallets from five to three high,
(because of a new racking system). The worker has complete
responsibility for these goods and must answer queries arising
following audits. The worker has to provide stocks required
for each day and leave them ready for the production process.
Each Wednesday a full stock check of stores and factory floor
is required.
2. Within the past two years there has been a change to more
natural ingredients for the ice cream. This has changed the
duties of the worker as he now has to make up and mix colours
on a daily/two-day basis. In some cases the difference in
colour is only a shade, and great care and attention is needed
to ensure accuracy as otherwise an entire batch of ice cream
could be ruined. The worker also has to monitor supplies and
contact the supplier when stock needs replenishing. There has
been a large increase in export orders and as the making up of
powders for exports is more complicated than for home brands,
the work associated with this operation has greatly increased.
3. A "Day Goods Issue" record book has recently been
introduced into the duties of the worker. A new chill box has
also been installed in the dry good store, holding
approximately forty pallets of new products. Racks have been
extended to cater for the overall increase in goods.
4. The duties of the worker have increased enormously in
recent years, both in volume and in responsibility. The
worker has undertaken these duties without complaint. The
Union sees the worker's job is now of the same importance as
that of a machine operator. In fact, some of his duties are
more appropriate to that of a checker - an even more senior
function. Due recognition should now be given to the worker
concerned in the form of a rate of pay equal to that of a
machine operator.
COMPANY'S ARGUMENTS:
4. 1. Due to growth in the Company's export business and to an
extension of its product range it is necessary to store raw
materials in an appropriate and operationally effective way.
This has necessitated the installation of a chill box in the
dry goods area and the removal of racking which was used for
storage of other products. There is no significant increase
in the volume of product stored in the area. From an
operational point of view work methods have changed but these
are normal and ongoing adjustments associated with new
business/markets. The changes do not justify an increase in
pay for the worker concerned.
2. The worker is employed as a fork-lift driver (details of
his functions supplied to the Court). The installation of the
chill box has made no significant difference to the essential
components of that job. The fact that some of the product he
is checking and moving is now chilled as opposed to dry does
not change the nature of the job of fork-lift driving of
Company product.
3. There is no relationship between the work carried out by
the worker concerned and machine operators. The claim should
be viewed strictly as a claim for a 5.7% increase in pay. In
the Company's view the claim is not justified. The Rights
Commissioner rejected the claim. The Company has applied
phase one of the P.E.S.P. and Clause 5 of that agreement
clearly provides for no other cost increasing claims (save
those provided for under Clauses 1, 3 and 4).
4. The Rights Commissioner awarded the worker full deputising
rate when he stands in for the foreman. This award was made
despite the fact that the claim was not formally before the
Rights Commissioner and despite the fact that the Company's
position on a 50% differential was upheld by the Labour Court
in 1985 (L.C.R. 10109 refers). In the interests of good
industrial relations the Company accepted the Rights
Commissioner's recommendation.
DECISION:
5. Having considered the submissions made by the parties the
Court is of the opinion that the Rights Commissioner's
recommendation was correct in the circumstances and should stand.
The Court so decides.
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Signed on behalf of the Labour Court
John O'Connell
__________________
30th September, 1991. Deputy Chairman
T.O'D./J.C.