Labour Court Database __________________________________________________________________________________ File Number: CD92378 Case Number: AD92192 Section / Act: S13(9) Parties: HALLMARK CARDS (IRELAND) LTD. - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioners Recommendation No. BC217/92 concerning the seniority of a worker.
Recommendation:
The Court has fully considered the views expressed by the parties
in the oral and written submissions.
The Court notes the Company accepted that it had departed from
custom and practice in the transfer of the operative to the new
department. There were reasonable grounds for criticism from the
workers representatives given the normal procedures in the Company
and the manner in which this transfer was effected. If there are
to be peaceful and harmonious relations the unions and management
must not only adhere to agreements but must be seen to do so.
The proposal to transfer a worker and the perceived need of the
Company to depart from custom and practice in relation to
transfers given the circumstances of this case and the individuals
involved should have been the subject of formal discussions
between the union official and management prior to hte transfer
being effected.
The Court has considered the Company's reasons for effecting the
transfer of the more senior operative and the implications for the
staff concerned and in all the circumstances takes the view that
the decision of management was not unreasonable. The Court
considers the recommendation of the Rights Commissioner should be
upheld.
The Court accordingly rejects the appeal of the Union. The Court
concurs with the Rights Commissioner's remarks that this must be
regarded as a once off situation.
Division: MrMcGrath Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD92378 APPEAL DECISION NO. AD19292
INDUSTRIAL RELATIONS ACTS,1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT 1969
PARTIES: HALLMARK CARDS (IRELAND) LTD.
(REPRESENTED BY FEDERATION OF IRISH EMPLOYERS)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioners
Recommendation No. BC217/92 concerning the seniority of a worker.
BACKGROUND:
2. The Company is involved in the manufacture of greeting cards
and employs in the region of 314 workers. In 1992 the Company
took over the work of a sister Company which had ceased
manufacturing. In order to cater for the newly acquired work a
separate department was set up. It was planned to staff the new
department by transferring 16 workers from the existing workforce.
The normal procedure for filling such positions is to advertise
them within the Company and failing sufficient applications, the
Company then chooses workers on a seniority basis.
In this particular case there were only 7 voluntary applications
and the Company itself selected and transferred the 9 other
workers required. One particular requirement in the new
department is for a full time Hunkeler operator. To fill this
vacancy the Company transferred the more senior of two operators
who were surplus in another department. The worker concerned
objected to the transfer on the grounds that the more junior
operator should have been transferred in accordance with normal
procedures. The Company maintains that the transfer of the junior
operator would have resulted in an impossible situation as he is
the deputy shop steward and is expected to attend Union meetings
on a regular basis. It would not be possible to provide staff
from the new department to relieve him.
The dispute was referred to the Rights Commissioner's service for
investigation and recommendation. A Right's Commissioner's
hearing took place on 11th June, 1992 and the following
recommendation issued on 22nd June, 1992.
"In the light of the above I believe that in the
circumstances outlined the Company is not acting unfairly in
departing from the normal custom and practice in the
situation outlined.
The recommendation of mine upholding the Company, relates to
this unique situation and must be regarded as a once off
Recommendation. Any other circumstances which might suggest
to the Company that it should act in a similar fashion must
not find its justification in this Recommendation of mine but
must be discussed fully with the Trade Union".
The Rights Commissioner's recommendation was appealed to the
Labour Court, by the Union, in accordance with Section 36 of the
Industrial Relations Act, 1990. A Labour Court investigation took
place on 29th July, 1992.
UNIONS ARGUMENTS:
3. 1. In failing to transfer the more junior operator who is
also the deputy shop steward the Company is in blatant breach
of established procedures. The argument that the Company
would not be in a position to both release and provide cover
for the operator to attend Union meetings is totally
unacceptable.
2. By its actions the Company is not only discriminating
against the deputy shop steward but is also impinging on the
right of the members to vote for whomever they please. The
Company is putting itself into a situation whereby it could
also dictate who could or could not (because of the position
held by him/her in the Company) run for the position of shop
steward.
COMPANY'S ARGUMENTS:
4. 1. The Company accepts that in this particular case it went
against custom and practice but it did so with very good
reason. Whereas it is currently possible to provide cover
when the deputy shop steward attends meetings this would not
be possible in the new department as there is only one
position for full time Hunkeler operator.
2. The more senior operator whom the Company chose to
transfer is transferring to an indentical job as the one he
previously held with no change in conditions or loss in
wages.
3. The Company reserves the right to manage in the way it
considers to be most efficient and effective.
DECISION:
The Court has fully considered the views expressed by the parties
in the oral and written submissions.
The Court notes the Company accepted that it had departed from
custom and practice in the transfer of the operative to the new
department. There were reasonable grounds for criticism from the
workers representatives given the normal procedures in the Company
and the manner in which this transfer was effected. If there are
to be peaceful and harmonious relations the unions and management
must not only adhere to agreements but must be seen to do so.
The proposal to transfer a worker and the perceived need of the
Company to depart from custom and practice in relation to
transfers given the circumstances of this case and the individuals
involved should have been the subject of formal discussions
between the union official and management prior to hte transfer
being effected.
The Court has considered the Company's reasons for effecting the
transfer of the more senior operative and the implications for the
staff concerned and in all the circumstances takes the view that
the decision of management was not unreasonable. The Court
considers the recommendation of the Rights Commissioner should be
upheld.
The Court accordingly rejects the appeal of the Union. The Court
concurs with the Rights Commissioner's remarks that this must be
regarded as a once off situation.
~
Signed on behalf of the Labour Court
31st August, 1992 Tom McGrath
A.O.S./M.H. ------------------------------------
Deputy Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Ms. Aoibheann Ni Shuilleabhain, Court Secretary.