Labour Court Database __________________________________________________________________________________ File Number: CD91653 Case Number: AD92125 Section / Act: S13(9) Parties: CADBURY (IRELAND) LIMITED - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION |
An appeal against Rights Commissioners recommendation No. BC400/91 regarding a dispute of a worker's option on shiftgroup.
Recommendation:
5. The option which the claimant rejected in 1989 debarred her
from future transfer to full-time 40-hour week, retaining service
for seniority purposes. The 1991 option was different in so far
as it required transfer on a day one basis. The Court considers
that it would be unreasonable and unfair to the Claimant to bind
her to the original option when the alternative though less
advantageous option became available to her colleagues, all of
whom had lesser service. Accordingly the Court considers that she
should have access to the 1991 option and therefore upholds the
Union appeal.
The Court so decides.
Division: Mr Heffernan Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD91653 APPEAL DECISION NO. AD12592
THE LABOUR COURT
INDUSTRIAL RELATIONS ACT, 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
PARTIES: CADBURY (IRELAND) LIMITED
and
AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION
SUBJECT:
1. An appeal against Rights Commissioners recommendation No.
BC400/91 regarding a dispute of a worker's option on shiftgroup.
BACKGROUND:
2. 1. In 1988 the Company found it necessary to operate extra
plants and reached an agreement with the production Unions
regarding weekend working. As a result, a weekend shift of 22
workers was set up linked with the full-time group for the
purposes of lay off. This arrangement proved difficult to operate
and a new agreement was negotiated and agreed in 1989 to form a
totally separate shift grouping for weekend workers, with no
option to apply for jobs in the existing full-time and part-time
groups.
2. To facilitate the new agreement a separate transitional
agreement was also put in place which gave the existing 22 weekend
workers a once-off option to choose between full-time or weekend
employment (details supplied). 21 out of the 22 workers opted for
full-time employment and the worker who is the subject of the
Labour Court investigation opted to remain working at the weekend.
In May 1990, 21 new weekend workers were recruited. All weekend
workers were laid off in November, 1990 and again after another
period in early-1991. Weekend working has not recommenced.
3. In July, 1991, the Company began recruiting extra workers who
were to be employed with the full-time group. An inter-union
dispute occurred over the request to recruit the weekend workers
who were on lay-off (details supplied). This was resolved and
weekend workers were recruited to full-time work. The Company
refused to recruit the worker who had exercised the once-off
option in 1989, in favour of weekend working.
4. The Union referred the dispute to the Rights Commissioner
Service. A Rights Commissioner's investigation took place on 22nd
October, 1991. In Recommendation BC400/91 issued on 31st October,
1991, the Rights Commissioner recommended as follows:-
"Having considered the matter and having given full and
careful consideration to the points made by both parties
I must conclude that sufficient grounds do not exist for the
worker to be given a further option. Therefore her claim
must fail and I recommend accordingly".
The worker was named in the recommendation.
The Union appealed the recommendation to the Labour Court on 5th
December, 1991. A Labour Court investigation took place on 13th
January, 1992.
UNION ARGUMENTS:
3. 1. In 1989, the worker opted for weekend work as at that
time the other option was unsuitable for her. At this stage
the worker has not been employed on weekend work since early
1991 and there is no possibility that work will become
available in the foreseeable future. All other weekend
workers who expressed an interest in full-time work have been
taken on by the Company on a day one start basis. The Company
is refusing to take on a worker with longer service and is now
to recruit people with no previous service to the Company.
2. When the worker opted in 1989 for weekend work, it was
ongoing. This is no longer the case. The situation has
changed in every respect and it is unfair to debar the worker.
It would in no way affect any other worker as the worker would
be last on the seniority list.
COMPANY ARGUMENTS:
4. 1. The worker has already received a once-off option of
transferring to the full-time shift in April, 1989. The
worker has been treated consistently by the Company and there
is no basis for her being considered in the same way as
workers who never had the benefit of exercising the once-off
option. The worker made her choice in the knowledge that
there were no guarantees on the duration or timing of the
weekend shift.
2. Once-off arrangements are by their nature exceptional
and cease to have any meaning if they are sought to be used
more than once. If this occurs there are wide-ranging
implications for the Company. There are 3 workers on the
weekend shift who have not sought full-time work on this
occasion. Concession of this claim could have implications
for these workers who could seek a second once-off option in
the future.
RECOMMENDATION:
5. The option which the claimant rejected in 1989 debarred her
from future transfer to full-time 40-hour week, retaining service
for seniority purposes. The 1991 option was different in so far
as it required transfer on a day one basis. The Court considers
that it would be unreasonable and unfair to the Claimant to bind
her to the original option when the alternative though less
advantageous option became available to her colleagues, all of
whom had lesser service. Accordingly the Court considers that she
should have access to the 1991 option and therefore upholds the
Union appeal.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
23rd January, 1992 -----------------
J.F./U.S. Chairman