Labour Court Database __________________________________________________________________________________ File Number: CD91393 Case Number: AD9332 Section / Act: S13(9) Parties: WELLMAN INTERNATIONAL LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's Recommendation No. C.W. 233/91 concerning loss of of job grade payment.
Recommendation:
5. The Court, having considered the oral and written views of the
parties and having taken account of the circumstances of this
particular case, finds the transfer to a higher rated job was
clearly permanent in nature and accordingly does not consider
there are grounds for amending the Rights Commissioner's
recommendation. Accordingly the Court confirms the findings of
the Rights Commissioner and rejects the appeal of the Company.
If problems such as encountered in this dispute are to be avoided
in the future the parties should seek to define the procedures and
the circumstances under which transfer from one job assignment to
another will take place taking into account agreements on
promotion, transfer and the requirements under protective
legislation.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD91393 APPEAL DECISION NO. AD3293
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: WELLMAN INTERNATIONAL LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No. C.W.
233/91 concerning loss of of job grade payment.
BACKGROUND:
2. The worker concerned commenced employment with the Company in
a temporary capacity as a process operator in March, 1986. He was
made permanent in October, 1987.
The Company operates a three grade structure for pay purposes with
most of the workers operating in grades three and four. In the
period 1986 to 1988 the worker concerned operated in a number of
grade three positions. In March, 1988 he was assigned to the
pallet mill which is a grade four position. In September, 1989 he
was transferred to a grade three position with the subsequent loss
of the grade four rate of pay. The Union claims that the worker
concerned was not acting up in a grade four position and had no
reason to believe that he would lose the grade four rate of pay
when transferred to a new position. The Company rejected the
claim. Local level discussions failed to resolve the issue and
the matter was referred to a Rights Commissioner for investigation
and recommendation. On 21st May, 1991 the Rights Commissioner
recommended as follows:
"I recommend that the Company concedes the Union claim in this
dispute, and that the worker retains his grade four rate of
pay".
The worker's name was mentioned in the Recommendation.
The Rights Commissioner's Recommendation was appealed by the
Company to the Labour Court on 30th July, 1991. A Labour Court
hearing arranged for 26th November, 1991 was postponed to allow
for further local level discussions. The Labour Court hearing
took place in Kells on 6th April, 1993.
COMPANY'S ARGUMENTS:
3. 1. The Company's policy has always been to transfer employees
from one job assignment to another and this system has been in
operation for approximately 20 years. Employees have been
upgraded to grade four and regraded to grade three as
appropriate.
2. As far as possible transfers are made within a similar job
category (job graded rate).
3. There is no justification for the Union's claim as the
worker concerned is being properly remunerated in accordance
with the terms and conditions of his employment.
4. The Company has offered that the worker concerned should
be assigned to a grade four post with the appropriate rate of
pay with effect from 1st January, 1993.
5. Concession of the Union's claim would create serious
problems in relation to job transfers in the future.
6. Following a lay-off in July, 1990, it was necessary to
transfer employees to lesser job grades. In these exceptional
circumstances it was agreed to 'red circle' the employees
concerned for job grade and return them to grade four
employment as soon as practicable.
UNION'S ARGUMENTS:
4. 1. There is no provision in the works agreement for temporary
transfers even though the Company uses the term when moving
workers from one job to another.
2. The term "temporary transfer" effectively has no meaning
for permanent employees. A number of workers remain in
positions many years after been temporarily transferred.
3. Clause 24 of the works agreement protects the grade rate
of workers in the event of the Company initiating a change of
position.
4. In 1991 the Company agreed to red circle the grade rates
of workers affected by involuntary change of grade. The
worker concerned should not be treated differently.
5. There is a clear understanding that workers who request a
change of job risk losing their grade rate of pay if moved to
a lower grade, but the Union disputes the Company's claim that
many workers lose their grade rate of pay when transferred to
a lower grade of work.
6. The worker concerned was transferred as a result of the
Company introducing new technology. There was no loss of
orders or downturn in business.
DECISION:
5. The Court, having considered the oral and written views of the
parties and having taken account of the circumstances of this
particular case, finds the transfer to a higher rated job was
clearly permanent in nature and accordingly does not consider
there are grounds for amending the Rights Commissioner's
recommendation. Accordingly the Court confirms the findings of
the Rights Commissioner and rejects the appeal of the Company.
If problems such as encountered in this dispute are to be avoided
in the future the parties should seek to define the procedures and
the circumstances under which transfer from one job assignment to
another will take place taking into account agreements on
promotion, transfer and the requirements under protective
legislation.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
__________________
29th April, 1993. Deputy Chairman
F.B./J.C.