LCR14197

Subject:
(i) Establishment levels; (ii) payment of foreman's rate to a worker.

Recommendation:
ESTABLISHMENT LEVELS

10. The Court has considered the submissions of the parties and
the oral evidence presented at the hearing. Both sides outlined
suggestions for cost savings - the Company through a
rationalisation of its operation and a greater use of contractors
and the Union through continued permanent employment and
alternative terms of employment for new recruits. To allow
discussions on these matters take place unimpeded, the Court
recommends that the existing two vacancies be filled by temporary
staff on the same pay terms as apply to permanent staff. In the
event that discussions are not completed within a period of
eighteen months, the two temporary employees should be absorbed
into the permanent staffing.

FOREMANS RATE:

Having considered the evidence presented the Court does not find
grounds to recommend concession of the Union's claim in this case.

Division: Mr Heffernan Mr Brennan Mr Walsh

Text of Document__________________________________________________________________

CD93489 RECOMMENDATION NO. LCR14197

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1)
INDUSTRIAL RELATIONS ACT, 1990



PARTIES: IRISH ALE BREWERIES PLC(IAB)
(Represented by the Irish Business and Employers Confederation)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION



SUBJECT:

1. (i) Establishment levels; (ii) payment of foreman's rate to
a worker.

BACKGROUND:

2. The Company operates a warehouse and distribution depot in
Ballyfermot. It employs approximately 55 people in the
distribution of beer to licenced premises in the North Leinster
area.

The dispute before the Court concerns two issues:-

(i) Establishment levels
and
(ii) payment of foreman's rate to a worker.

3. The dispute was referred to the Labour Relations Commission.
A conciliation conference was held on 21st July, 1993, but no
agreement could be reached and the matter was referred to the
Labour Court on 30th July, 1993. The Labour Court hearing took
place on 7th September, 1993.

ESTABLISHMENT LEVELS

4. In May, 1990, agreement was reached between the parties on an
establishment level of 55, a reduction of 11 posts on the previous
establishment level. Recently two positions became vacant (due to
a death and a promotion which is a new post).

In November,1991, the Company created a new post
(Foreman/Checker). It was agreed that if the new position proved
successful it would become a permanent position. In early 1993
the post was made permanent. The Union claims that the new post
has effectively increased the establishment level from fifty-five
to fifty-six. The Company rejected the claim.

The Company is seeking to enter into discussions with the Union on
proposals in relation to a rationalisation plan covering the
period 1994/2000. The Union's position is that before any
discussions take place, the Company fill the vacancies with
permanent employees. An offer by the Company to fill the
vacancies with casuals was rejected by the Union.

UNION'S ARGUMENTS:

5. 1. The Company is part of the Guinness Group of Companies
which has substantial operating profits.

2. Since 1980 due to ongoing rationalisation, the Company
has reduced the permanent establishment levels in the Dublin
depot from one hundred and four to the present level of
fifty-four.

3. The throughput of the Dublin Depot has not decreased.
The Company use outside hauliers on a day-to-day basis to cope
with the delivery requirements. There is no case to be made
for any further reduction in staff levels.

4. The Union are willing to discuss measures aimed at
making the Dublin depot more efficient and cost-effective,
provided employment levels agreed in 1990 are restored and
protected.

5. The Company has failed to honour the 1990 agreement on
establishment levels. Management can not be trusted and under
the circumstances discussions are not possible.

6. The social partners in the programme for Economic and
Social Progress committed themselves to the creation of good
Industrial Relations which would be conducive to the creation
and maintenance of employment. The Company can achieve this
environment by honouring the 1990 Agreement and filling the
two vacancies on a permanent basis.



COMPANY'S ARGUMENTS:

6. 1. The company plans to phase out its own distribution over
the next six years. The plan was presented to the Union in
the provinces earlier this year. The company do not see any
merit in promoting employees to full-time positions, while at
the same time seeking to rationalise the Ballyfermot facility.



2. The company do not believe it has breached the 1990
Agreement as they believed it to be a 3-year agreement for the
years 1989/90 and 1991 which was subsequently extended to 1992
and expired on that date.

3. The company believe it has acted in good faith
throughout the term of that agreement. During the course of
1991, 3 people were replaced by the company to re-establish
the manning level at 55. The Company believe that the
proposals put to the union to fill the vacancies were
reasonable and should have been accepted.

4. There is clearly a requirement for the company and the
union to sit down and negotiate a new agreement in the light
of company policy in relation to its transport operations.
Failure to resolve this issue could damage the company's
competitive position.

5. Without prejudice to the above argument, the company
argue that if the union's claim is conceded the correct
manning level is 55. That is, the vacancy created by the
promotion does not constitute a reduction by one in the
manning level.

PAYMENT OF FOREMAN'S RATE OF PAY TO A WORKER:

7. Prior to 1989, foreman vacancies were automatically filled by
the senior man. In 1989, the Company decided that the senior man
was unsuitable and did not promote him. The Union referred the
matter to a Rights Commissioner for investigation and
recommendation. The Rights Commissioner upheld the Company's
position but recommended that the worker be promoted to the next
position of stand-by foreman. The worker appealed the
recommendation to the Labour Court. A binding decision was issued
in which the Court upheld the Rights Commissioner's
recommendation. The Company implemented the recommendation.

In early-1993, the Union became aware of an agreement in the
parent Company (Guinness) whereby senior men who were passed over
for promotion received a notional promotion and received the
higher rate of pay. The Union is seeking the application of this
agreement to the worker concerned. The Company rejected the
claim.

UNION'S ARGUMENTS:
8. 1. The non-selection of the worker concerned on the grounds
of suitability was a new departure from the traditional way of
appointing foremen.

2. By custom and practice the senior person was always
appointed to foreman vacancies. This has been the practice
for approximately 25 years.

3. All the present foremen (four) and stand-by foremen were
selected on a seniority basis with the exception of the worker
concerned.

4. If the parent Company was prepared to ensure that senior
employees who had an expectation of promotion to foreman did
not suffer financially because of new selection procedures,
then the same criteria should apply to the worker concerned.

5. The worker concerned has lost considerable earnings by
his failure to gain promotion.

6. The worker concerned has been treated unfairly. Foremen
are appointed from the stand-by foremen's list in accordance
with their position on the list. The worker concerned as the
last person on the list, is facing a long period of waiting
before being promoted.

COMPANY'S ARGUMENTS:

9. 1. The Guinness scheme arose from the introduction of a
stringent procedure for appointing foremen as a result of
which a number of workers lost promotional opportunities.
There is no such scheme in IAB. The worker concerned has not
been promoted because of his poor employment record and has
been deemed unsuitable for such a position.

2. The Guinness scheme expired in 1986, 3 years before the
worker's appeal to the Rights Commissioner in 1989. It is now
11 years since the scheme was negotiated and put in place and
7 years since it expired. In this regard two points can be
made:-

(A) either the Union knew about the scheme and did not
pursue a claim. This would imply that the scheme
was not relevant to IAB or

(B) they did not know about the scheme and therefore
did not claim. This implies that there is little
contact between the two groups and supports the
Company's position that deals done in Guinness
apply to Guinness, not IAB.

(3) There is no merit in the claims of the worker concerned.

RECOMMENDATION:

ESTABLISHMENT LEVELS

10. The Court has considered the submissions of the parties and
the oral evidence presented at the hearing. Both sides outlined
suggestions for cost savings - the Company through a
rationalisation of its operation and a greater use of contractors
and the Union through continued permanent employment and
alternative terms of employment for new recruits. To allow
discussions on these matters take place unimpeded, the Court
recommends that the existing two vacancies be filled by temporary
staff on the same pay terms as apply to permanent staff. In the
event that discussions are not completed within a period of
eighteen months, the two temporary employees should be absorbed
into the permanent staffing.

FOREMANS RATE:

Having considered the evidence presented the Court does not find
grounds to recommend concession of the Union's claim in this case.
~


Signed on behalf of the Labour Court

Kevin Heffernan
12th October, 1993 ----------------
F.B./U.S. Chairman


NOTE:

ENQUIRIES CONCERNING THIS RECOMMENDATION SHOULD BE ADDRESSED TO
MR FRAN BRENNAN, COURT SECRETARY.