Labour Court Database __________________________________________________________________________________ File Number: CD93439 Case Number: AD9377 Section / Act: S13(9) Parties: IRISH PRESS NEWSPAPERS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's Recommendation No. DC 37/93.
Recommendation:
5. The Court, having considered all of the views expressed by the
parties in their oral and written submissions, does not find
grounds have been put forward to warrant an amendment of the
Rights Commissioner's recommendation.
Accordingly the Court rejects the appeal of the Union and upholds
Recommendation.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD93439 APPEAL DECISION NO. AD7793
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: IRISH PRESS NEWSPAPERS LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
DC 37/93.
BACKGROUND:
2. The dispute concerns a claim by five Maintenance Assistants
for retrospection of the application of the Press Department rate
of pay. In July, 1990 the Company was on the verge of closedown.
This was averted by the acceptance of Labour Court Recommendation
12932 on rationalisation proposals. Consequently, the Union
received a proposal from Management that the Maintenance
Assistants grade be phased out, and that the five positions in
question be made redundant. The Union rejected this proposal,
insisting that other staff should not be permitted to take over
the work, and that the five persons involved be guaranteed their
seniority in the Rationalisation Proposals. These proposals
resulted in the formation of the Press Department by way of an
amalgamation of the previous Machine Room Despatch Department and
Stores Department under the terms of Labour Court Recommendation
No. 12932.
The Union contended that the Company had continued to retain the
claimants in their own positions, as the duties they performed
still required to be undertaken, and maintained that this
arrangement had never been sought by the Union and completely
contravened the Departmental Seniority. The Union also pointed
out that during this period, the five were fully trained for the
new Press Department Operations and paid the appropriate higher
rate of pay during training, and were then reverted to their own
grade upon completion.
Negotiations in respect of their total integration continued and
were finally concluded on 20th March, 1992. The Union maintained
that the agreement reached provided for the claimants to continue
the same duties as before while receiving the Press Department
rate of pay. The Union contends that on those grounds there was
no reason why that Agreement could not have been finalised in
October, 1990, on the basis that the five claimants strongly held
that their Stores Department Seniority entitled them to a
transfer, and as a consequence the higher rate of pay. The Union
was seeking the application of the Press Department rate of pay
for the five claimants for the period from October, 1990 to March,
1992, which in financial terms amounted to a total of #20,000
approximately.
The Company's position was that following its proposals in July,
1990, the question of which Department the Maintenance Assistants
were attached to was a major issue during discussions. This arose
because the then Personnel Manager had been informed in 1987 by
the Maintenance Assistants' shop steward, that the Assistants had
opted out of the Stores Department, and had refused to accept
instructions from the Stores overseer. They had also not been
available to participate in routine Stores Department duties.
Furthermore, when the Company prepared a Supplemental Agreement
for the new Press Department, which involved a reduction of some
thirty jobs, the Maintenance Assistants' names were not part of
the nominated establishment.
When the Training Programme for the new Press Department
commenced, following representations from the Union, the Company
agreed to include the Maintenance Assistants in the Training
Programme, on the basis that in the event of permanent vacancies
arising, they would be eligible to apply for such jobs. It was
acknowledged that the claimants would receive the Press Department
rate of pay during the period of their Training. Subsequently, in
June, 1991, when two vacancies arose, each individual was invited
to attend for interview. The Company was informed by the shop
steward that none of the claimants would be participating. The
Company took a serious view of this stance.
The dispute was the subject of two conciliation conferences, on
1st October and the 22nd October, 1991 at which agreement was not
reached. Subsequently, at a meeting with the Union on the 16th
January, 1992, the Company agreed that if and when the Maintenance
Assistants transferred from Maintenance to the Press Department,
they would be paid appropriate loss of earnings in line with
Labour Court Recommendation 12932. An Agreement on the transfer
was reached on the 20th March, 1992, which provided for the
incorporation of the claimants into the Press Department, and all
of the conditions attaching to rates of pay, holidays and
appropriate loss of earnings were applied with effect from that
date.
The Union maintained that the issue in dispute, i.e., the rate of
pay had been an integral element of the negotiations from 1990,
whereas the Company stated that it had only been introduced as an
addendum to the Agreement reached with the Union on 20th March,
1992. The dispute was investigated by a Rights Commissioner who
found that the Union's claim was only first introduced on the 20th
of March, 1992, and given that the Company duly met its obligation
to the claimants under the provisions of Labour Court
Recommendation 12932 on that date, that there are no substantive
grounds for further payments.
The Union appealed the Rights Commissioner's Recommendation to the
Labour Court on the 23rd of July, 1993, in accordance with Section
13(9) of the Industrial Relations Act, 1969. The Court heard the
appeal on the 23rd of August, 1993.
UNION'S ARGUMENTS:
3. 1. The Rights Commissioner drew erroneous conclusions from
the facts presented to him, causing him to make a
recommendation inconsistent with the facts. Management's
statement that "the then Personnel Manager had been informed
in 1987 by their shop steward that the Maintenance Assistants
had opted out of the Stores Department, had refused to accept
instructions from the Stores Overseer and had not been
available to participate in routine Stores Department duties"
is wrong and misleading. The statement concerning the shop
steward was rejected by the shop steward concerned. Proof was
made available to the Rights Commissioner that, as Stores
Department shop steward, he continued to represent the
Maintenance Assistants, as members of that Department.
2. The names of Maintenance Assistants had to be included in
the list of names put forward at the time. No-one had the
right to leave them out. Union officials involved at the time
maintain that the names were included.
3. The statement that "the Company had agreed to include the
Maintenance Assistants in the Training Programme, on the basis
that in the event of permanent vacancies arising, they would
be eligible to apply for such jobs" is without foundation. No
such stipulation was ever part of any agreement.
4. It is incorrect to state that vacancies arose in 1991.
These vacancies were there since 1990 and were being covered
by boys. Management decided in 1991 to hold the interviews
referred-to in the hope that the claimants would compromise
their rightful claim to the positions by attending for
interview with people from other departments. In the event,
they refused to apply for what they considered were their own
jobs.
5. In the shop steward's notes of the conciliation conference
of 22nd October, 1991, there is a record of a statement by the
conciliation officer, that the Maintenance Assistants "could
be incorporated into the Press Department. The monies due to
them should be paid". These notes were available to the
Rights Commissioner.
6. The notes of the Conciliation Conference of 22nd October,
1991, which were available to the Rights Commissioner, should
have made it clear that the conference was called specifically
for the issue of Maintenance Assistants but that other issues
were raised by management which took up the time of the
meeting. It should also be noted that the case heard by the
Rights Commissioner resulted from a referral to him from the
Labour Relations Commission where the issue was initially
referred in January, 1992. It is inconceivable to suggest
that the issue of retrospection was only raised on 20th March,
1992.
7. The Rights Commissioner stated that the Assistants "were
each paid an amount of #6,063 under the provisions of Labour
Court Recommendation No. 12932". While he subsequently
acknowledged this as an error, we believe this is what he took
into account when making his Recommendation.
8. The Rights Commissioner's Recommendation is hinged on his
belief that the issue of retrospection was not previously
raised. This belief has been countered by the above
arguments.
COMPANY'S ARGUMENTS:
4. 1. The rate of pay set by L.C.R. 12932 for the new Press
Department took account of all pay elements within the three
departments. These included Sunday Press (S.P.) payment, day
shifts, night differential payments, overtime, work-through
and special arrangements, to arrive at the 1990 rate of
#16,500.00 per annum, (currently #18,014.70 per annum).
2. Between October, 1990 and March, 1992, the Maintenance
Assistants were not required to perform or participate in any
of the Press Department duties or activities (with the
exception of their period of training in the Press Department
areas). They were not required to attend any Saturday night
(S.P.) shifts, to rotate onto all-night shifts. They were not
required to attend from Saturday noon until Monday a.m. They
were on their own rate of #275.33 and could earn overtime.
As can be determined from their earnings between 1988 and
1993 (details supplied to the Court), the Maintenance
Assistants did not suffer any Loss of Earnings due to their
remaining in the Maintenance Department between October, 1990
and March, 1992. Accordingly, the Company has fully
discharged its obligation to the five former Maintenance
Assistants.
3. The Company would not consider it fair to the other
members of the Press Department, who have since October, 1990,
carried out and fulfilled all elements for their rate of pay,
to award that rate to any other group which did not have to
fulfil the same obligations especially in relation to S.P.
attendance.
DECISION:
5. The Court, having considered all of the views expressed by the
parties in their oral and written submissions, does not find
grounds have been put forward to warrant an amendment of the
Rights Commissioner's recommendation.
Accordingly the Court rejects the appeal of the Union and upholds
Recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
_______________________
28th September, 1993. Deputy Chairman.
M.K./J.C.