Labour Court Database __________________________________________________________________________________ File Number: CD94162 Case Number: AD9489 Section / Act: S13(9) Parties: R AND H HALL - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. BC384/93.
Recommendation:
The Court has considered all of the submissions oral and written
made by the parties.
The 1991 agreement provided for increases in pay (Clause 23)
which reflected the changes in work practices and additional
duties undertaken.
The Court notes that the claimant, when in casual employment with
the Company, has enjoyed the increased rates of pay. It is the
view of the Court that the provisions of Clause 8 of the
agreement, therefore, apply to the claimant.
Given the above, and the record of casual employment enjoyed by
the claimant to date, the Court finds that no grounds have been
adduced to substantiate the claim that he has been treated
unfairly in the allocation of casual work.
The Court, given all the circumstances, upholds the appeal of the
Company.
The Court so decides.
Division: MrMcGrath Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD94162 APPEAL DECISION NO. AD8994
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
R AND H HALL
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
AND
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. BC384/93.
BACKGROUND:
2. The Company is involved in the grain drying business and is
based in Kennedy Quay, Cork.
The Union claimed that its member, a casual worker, had been
unfairly dealt with by the Company with regard to call-back.
The Union contends that the worker's service should be
recognised and that he should be given first call on any
casual work arising in the Company. The Company rejected
the claim on the grounds that, on foot of an agreement
concluded between the parties in July, 1991, there is no
obligation on the Company to take back casual employees.
The dispute was the subject of investigation by a Rights
Commissioner whose findings and recommendation were issued on
the 9th of February, 1993. He recommended that the claimant
and another casual employee be "treated equally and where
casual employment is available, then on a month alternating
with a month's basis, each should enjoy the benefit of a
recall".
The recommendation was appealed by the Company on the 15th of
March, 1994. The appeal was heard on the 11th of November,
1994.
COMPANY'S ARGUMENTS:
3. 1. Since the conclusion of 1991 Comprehensive Agreement,
the Company has engaged casual employees for a variety
of job functions and has exercised its unqualified right
to recruit the casuals on the basis of the Company's
assessment of suitability for the work available.
Clause 8 of the Agreement refers, as follows:-
"The Company as it deems necessary from time to time,
may employ casual employees for seasonal work. For the
duration of their employment, such employees shall be
subject to the terms of this Agreement. The Company
reserves the right to employ casual workers as it deems
suitable from time to time. Casual workers will be
given due consideration for employment to permanent
positions, but shall not be automatically entitled to
such positions."
2. The effect of the Union claim is clearly to amend the
terms of the 1991 Agreement, namely Clause 8, by
qualifying the explicit right of the Company to assess
suitability of a casual for the work available.
3. The Rights Commissioner erred substantially in his
recommendation. Paragraph 1 of his findings clearly
endorses the Company's position, as follows:-
"I am satisfied that the Agreement recently concluded is
of paramount importance to the Company and must be
supported".
Yet, in his recommendation, he proceeds to amend that
agreement by conferring on two particular casual workers
and, by inference other casual workers, rights to
employment that are specifically excluded by the
Agreement.
4. The worker in question does not have the multi-skills
level of the other casual worker who was engaged. The
Company required a casual worker with mechanical,
driving and manual skills.
5. The Company refutes the suggestion that it in any
discriminated against the worker, or that he was not
re-engaged on the grounds that he took two weeks'
holidays in August, 1992, at a time during which he was
employed by the Company.
UNION'S ARGUMENTS:
4. 1. At the time of the 1991 Agreement, the worker was the
most senior casual with the Company and has been paid
the same rate of pay before and since the Agreement.
Any new casual employed since the agreement has been
paid according to the terms of the Agreement (details
supplied to the Court). It is, therefore, unacceptable
that the Company will not recognise the claimant as the
first casual to be called, when work becomes available.
2. In acknowledging the Company's "right to recruit
employees", the Union did not do so on the basis that
the Company would use it to discriminate against a
casual employee. The claimant was covered by Clause 23
of the Agreement, which refers to current employees. He
has been paid the full-time rate on each occasion he was
employed.
3. At the time of his return to work, in September, 1992,
the worker was informed that it was not worth his while
returning as there were only two days' work available.
It transpired that this was not the case, as three
casuals continued to be employed by the Company.
4. The worker has the requisite skills to perform the
duties required of him.
DECISION
The Court has considered all of the submissions oral and written
made by the parties.
The 1991 agreement provided for increases in pay (Clause 23)
which reflected the changes in work practices and additional
duties undertaken.
The Court notes that the claimant, when in casual employment with
the Company, has enjoyed the increased rates of pay. It is the
view of the Court that the provisions of Clause 8 of the
agreement, therefore, apply to the claimant.
Given the above, and the record of casual employment enjoyed by
the claimant to date, the Court finds that no grounds have been
adduced to substantiate the claim that he has been treated
unfairly in the allocation of casual work.
The Court, given all the circumstances, upholds the appeal of the
Company.
The Court so decides.
~
Signed on behalf of the Labour Court
13th December, 1994 Tom McGrath
M.K./D.T. ----------------
Deputy Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Michael Keegan, Court Secretary.