Labour Court Database __________________________________________________________________________________ File Number: CD92131 Case Number: AD92151 Section / Act: S13(9) Parties: H.B. ICE CREAM - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
An appeal against a Rights Commissioner's recommendation (BC336/91) regarding the appropriate rate of pay of a worker.
Recommendation:
5. The Court notes the good-will that exists in the Company to
resolve this issue to the benefit of the claimant. It notes also
the concern of the Company that any movement on their part may
give rise to wide repercussive claims from other staff. The Court
recognises the acknowledgment by both sides that the claimant had
reasonable expectations of promotion to machine operator as far
back as the early 80s but that these expectations were never
fulfilled because trading difficulties intervened.
It is anticipated that the claimant will be promoted to machine
operator in February, 1994 as a result of natural wastage.
Having considered all the circumstances, the Court is of the view
that the Company should advance his promotion to 1st May, 1992, on
condition that the Union accepts that such promotion is not a
ground for claiming increased numbers of machine operators and is
without prejudice to the position of the Company on such an issue.
The Court so decides.
Division: Mr Heffernan Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD92131 DECISION NO. AD15192
INDUSTRIAL RELATIONS ACT, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: H.B. ICE CREAM
(Represented by the Federation of Irish Employers)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. An appeal against a Rights Commissioner's recommendation
(BC336/91) regarding the appropriate rate of pay of a worker.
BACKGROUND:
2. 1. The worker has been employed in a permanent capacity
since 1976 as a yardman. In 1982 an agreement was reached
with the Union that the worker would transfer into the factory
during the ice-cream season as a machine operator at the
appropriate rate. As part of the agreement, when the worker
returned to the yard after the season, he would be paid the
yard rate. The worker was placed, at an agreed point, on the
seniority list for a permanent factory appointment.
2. The Union made a claim on the Company that the worker
should retain, at all times, the higher rate he receives for
his work as machine operator. The claim was referred to the
Rights Commissioner's service. A Rights Commissioner's
investigation took place on 12th December, 1991 and his
recommendation, as set out below, was issued on 20th February,
1992.
"In the light of the above I, regrettably must come to
the conclusion that the agreement of 1982 should stand.
I recommend accordingly.
Some grains of comfort may be gleaned from the
conviction held by both parties that within a
relatively short time the worker should be in a
position to apply for a vacancy among machine operators
on a permanent basis."
The worker was named in the recommendation.
3. The Union appealed the recommendation to the Labour
Court by letter dated 26th February, 1992 under Section 13(9)
Industrial Relations Act, 1969. A Labour Court investigation
took place on 26th March, 1992.
UNION'S ARGUMENTS:
3. 1. The worker has been employed as a machine operator
during the ice-cream season by agreement since 1982. The
situation has changed dramatically since that time and the
worker now spends only 5 to 6 weeks a year working in the
yard. The Union do not seek to alter the yardman's rate but
that the worker should retain his higher rate for the full
year.
2. The worker is being treated less favourably than
temporary workers who retain the machine operator's rate even
while employed in the yard. The ice-cream season which was
quite short in 1982, now lasts 90% of the year. The worker's
claim is reasonable in the light of the changes which have
occurred since 1982.
COMPANY'S ARGUMENTS:
4. 1. The Company operates a system whereby workers moving
from a higher-paid to a lower-paid job retain the higher rate.
The converse applies for workers moving from lower-paid jobs.
Concession of the Union's claim would end this agreement and
it would have serious repercussions and knock-on effects for
the Company. The Union entered the 1982 agreement on the
understanding that such a claim would not arise.
2. Rates of pay in the Company were established after
detailed and lengthy job evaluation. The rate of pay which
applies to the yardman is also the rate which applies to
palletisers and is the rate used for equal pay purposes. The
Company is satisfied that any change in the yard rate of pay
will result in consequential claims from other groups which
are in receipt of the same rate of pay.
DECISION:
5. The Court notes the good-will that exists in the Company to
resolve this issue to the benefit of the claimant. It notes also
the concern of the Company that any movement on their part may
give rise to wide repercussive claims from other staff. The Court
recognises the acknowledgment by both sides that the claimant had
reasonable expectations of promotion to machine operator as far
back as the early 80s but that these expectations were never
fulfilled because trading difficulties intervened.
It is anticipated that the claimant will be promoted to machine
operator in February, 1994 as a result of natural wastage.
Having considered all the circumstances, the Court is of the view
that the Company should advance his promotion to 1st May, 1992, on
condition that the Union accepts that such promotion is not a
ground for claiming increased numbers of machine operators and is
without prejudice to the position of the Company on such an issue.
The Court so decides.
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Signed on behalf of the Labour Court
Kevin Heffernan
14th April, 1992 --------------
J.F./U.S. Chairman