Labour Court Database __________________________________________________________________________________ File Number: CD92489 Case Number: AD92214 Section / Act: S13(9) Parties: CADBURY IRELAND LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION;AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION |
Appeal by the Union against Rights Commissioner's Recommendation B.C. No. 291/92 concerning deduction of 6.50 hours pay.
Recommendation:
5. The Court has fully considered all of the views expressed by
the parties in their oral and written submissions. The Court
concurs with the sentiments expressed by the Rights' Commissioner
in his Recommendation that had the agreement in the Company been
invoked and respected the issue would not have arisen. The Court
however takes the view that in the particular circumstances of
their case the balance of equity lies with the employees concerned
and accordingly the Court decides the employees should be paid the
six and a half hours deducted. The agreements existing in the
Company are sufficiently comprehensive as to ensure that there
should be no interruption in production. The Court fully concurs
with the Rights' Commissioner that any claim in respect of other
employees who became involved in the dispute would be
unsustainable.
The Rights' Commissioner's recommendation should be amended to
reflect the above.
The Court so decides.
Division: MrMcGrath Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD92489 APPEAL DECISION NO. AD21492
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: CADBURY IRELAND LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation B.C. No. 291/92 concerning deduction of 6.50 hours
pay.
BACKGROUND:
2. In early 1992 the Company installed a new plant, "Delta", to
manufacture a new product for the U.K. market. Production started
with a two-shift operation. In June, 1992, a ten-hour night shift
was introduced. The Company sought continuous running of
production on all three shifts and discussions on the issue were
ongoing. The Company submitted proposals for continuous running
on the "Delta" night shift with effect from 15th June, 1992. The
workers rejected the proposals. Local level discussions took
place on 19th June, 1992 and 23rd June, 1992 but no agreement
could be reached. On 24th June, 1992, Management informed the
workers that continuous running would be operated during the shift
that night. Proposals in respect of break patterns were put to
the workers. The workers rejected the proposals and proposed that
the dispute be referred to the next stage of agreed procedure
which provides for further local-level discussions. The Company
invoked the peace agreement which provides for a ten-day
cooling-off period. The Unions claimed that as no industrial
action had taken place the Company could not invoke the peace
agreement. No agreement could be reached and the plant stopped at
about 1.30 a.m. which resulted in a loss of 6.50 hours pay to the
workers concerned. On the night in question a number of workers
from outside the "Delta" plant became involved in unofficial
industrial action in support of their colleagues. On 25th June,
1992, agreement was reached for a return to work and the matter of
the 6.50 hours loss of pay was referred to a Rights Commissioner for
investigation and recommendation. On 26th June, 1992 the Rights
Commissioner recommended as follows:
"This issue is seriously compounded by the fact that
irreconcilable conflicts of evidence have emerged between the
parties as to the sequence of events on the nights of 24/25
June, 1992. Little agreement exists as to the content of the
various discussions on that night.
What there is no dispute about is that there is a coherent
and workable Agreement within the Cadbury employment
regulating the maintenance of industrial peace. Had this
Agreement been invoked and respected then this dispute
concerning the intention of the Company to deduct six and a
half hours pay from thirty three employees would not have
arisen. (I am particularly gratified to note that there is
no claim on behalf of the larger number of employees who
stopped work in misguided sympathy. Any such claim on their
behalf would not be sustainable.
Equity propels me to make this Recommendation.
Cadbury Ireland should deduct three and a quarter hours pay
from the wages of each of the thirty three persons referred
to in this investigation".
The Rights Commissioner's recommendation was rejected by the Union
who appealed it to the Labour Court. The Court heard the appeal
on 10th September, 1992.
UNION'S ARGUMENTS:
3. 1. It is accepted that management are under pressure to
deliver on the "Delta" investment but this dispute could have
been avoided if management had abided by well-established
agreed procedures for resolving disputes.
2. Management are aware of procedures. Management were
present at discussions on 22nd June, 1992. These discussions
were held in an attempt to resolve a dispute regarding
break-patterns for morning and evening shifts in the "Delta"
plant.
3. The workers concerned were taken off the payroll. This is
in breach of existing agreements and the workers should not
suffer any loss of pay as a result of the unnecessary action
taken by the Company.
4. It is unacceptable that workers are penalised for working
normally and abiding by procedures.
5. If it was imperative that break-patterns be changed
immediately, the changes could have been facilitated through
the agreement "consultation of changes". Under the agreement,
while objections to the changes are going through procedures,
the changes can be operated for a trial period.
COMPANY'S ARGUMENTS:
4. 1. There is intense pressure on the Company to deliver on the
investment. Progress of the plant is being closely monitored
by Cadbury, U.K.
2. The Company was more than reasonable in affording time for
discussions in respect of breaks and, in fact, postponed
implementation of continuous running on a number of occasions
to allow for further discussion. During these discussions the
Company tried to accommodate the workers' views in relation to
the break structure.
3. The break-pattern put forward by the Company is in
compliance with the existing agreement on breaks. It is more
favourable than that normally agreed in that it provided for
more time off the plant.
4. The position put to the Company on the night in question
amounted to unofficial industrial action.
5. Normal procedures should have been followed by the workers
concerned. No matter what views were held by the workers on
the night in question, there was no need to embark on
industrial action.
6. The Company made its position clear that if there was
industrial action it would invoke the peace agreement. If the
terms of the agreement had been allowed to operate, the
Company would have been obliged to accept the workers'
interpretation of the agreement for the 10-day cooling-off
period.
7. During the Rights Commissioner's hearing the Unions argued
that they could not accept the peace agreement being invoked
because it was used by the Company to introduce change. This
is not correct. The whole purpose of this agreement is to
provide an operating practice while the issue in dispute is
dealt with through normal procedure, without prejudice to
either side's position. This agreement cannot be used to
bring about change.
DECISION:
5. The Court has fully considered all of the views expressed by
the parties in their oral and written submissions. The Court
concurs with the sentiments expressed by the Rights' Commissioner
in his Recommendation that had the agreement in the Company been
invoked and respected the issue would not have arisen. The Court
however takes the view that in the particular circumstances of
their case the balance of equity lies with the employees concerned
and accordingly the Court decides the employees should be paid the
six and a half hours deducted. The agreements existing in the
Company are sufficiently comprehensive as to ensure that there
should be no interruption in production. The Court fully concurs
with the Rights' Commissioner that any claim in respect of other
employees who became involved in the dispute would be
unsustainable.
The Rights' Commissioner's recommendation should be amended to
reflect the above.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
____________________
15th October, 1992. Deputy Chairman
F.B./J.C.