Labour Court Database __________________________________________________________________________________ File Number: CD94524 Case Number: LCR14619 Section / Act: S26(1) Parties: WYETH NUTRITIONALS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dispute concerning (1) Seniority in appointments, (2) Compensation for loss of shift premium, (3) Utility pool operators,
Recommendation:
The Court has considered the submissions from the parties and
recommends as follows on the three items in dispute:-
1. SENIORITY:
The Court is satisfied that the criteria used by the Company
for selection of applicants for promotion are not
unreasonable. The Court notes in particular the recognition
given to seniority. During the course of the hearing it
became clear that the Unions main concern was the Company
taking into account the disciplinary record of applicants,
submitting that this may result in a double penalty. The
Court recommends where disciplinary penalty has been placed on
an employees record it should expire for promotion purposes
after 24 months.
2. COMPENSATION FOR LOSS OF SHIFT EARNINGS:
Having examined the Company/Union Agreement on this issue the
Court is of the view that regardless of what may have occurred
in the past the Agreement clearly refers to compensation for
loss of earnings due to enforced shift changes. The Union's
claim accordingly fails.
The Court notes in this regard the Company's position (page 11
of submission) as regards two employees who have suffered
permanent loss of earnings, and its proposal to compensate two
other employees who have worked temporary shifts by
application of the formula on the basis of actual loss of
earnings. The Court is satisfied that the other claimants
have not established "loss of earnings" and accordingly are
not entitled to compensation under the terms of the agreement.
The Court recommends the Union accept the above.
3. THE UTILITY POOL
Having considered the submissions and the arguments made the
Court does not recommend concession of the Union's claim.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD94524 RECOMMENDATION NO. LCR14619
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES:
WYETH NUTRITIONALS LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dispute concerning (1) Seniority in appointments,
(2) Compensation for loss of shift
premium,
(3) Utility pool operators,
BACKGROUND:
2. 1. The Company was established in 1974 and is engaged in
the production of infant food stuffs for the U.K. and
other export markets. It employs 465 workers.
Seniority in appointment
2. All vacancies which arise within the plant are
advertised internally. During 1993, 40 positions were
advertised and filled. When filling vacancies, the
Company's policy is to appoint the most qualified, most
suitable applicant for the position with seniority
becoming the decisive factor when all things are equal.
This policy is stated in the Company/Union Agreement.
3. In September, 1993 the Union disputed the selection
process and claimed that experience and seniority should
be the criteria for selection. The Union claimed that
most of the vacancies filled by the Company were not
promotions but shift changes.
Compensation for loss of shift premium
4. The Union is claiming a compensation payment for loss of
shift premia for nine workers who were displaced from
shift work due to the plant's expansion. The Company's
policy in relation to compensation for loss of earnings
is to compensate only where permanent loss has arisen.
The Company claims that of the nine workers, five have
since obtained permanent shift positions. The Company
has agreed to address the issue of compensation for the
remaining four workers. The Union regards the claim as
a buy out of shift premiums rather than a compensation
claim.
Utility Pool Operators
5. In addition to the established staffing levels in the
various departments throughout the plant, the Company
retains a utility pool of workers. Its purpose is to
have workers available for deployment where absences,
emergencies or priorities dictate from time to time.
6. The Company gives one week's notice of transfer when a
person is transferred from day to shift work. Where it
cannot give this notice, the worker receives
compensation of one week's shift premium. The Union is
claiming that it has been the practice that the utility
pool is also covered by the one week rule or
compensation where appropriate. The Company has
rejected the Union's assertion.
7. The above disputes were refereed to the Labour Relations
Commission. Conciliation conferences were held on 10th
March and 18th August, 1994. The disputes could not be
resolved and on 14th October, 1994 they were referred to
the Labour Court under Section 26(1) of the Industrial
Relations Act, 1990. The Labour Court investigated the
disputes in Limerick on 3rd November, 1994.
UNION'S ARGUMENTS:
Seniority in appointments
3. 1. The Union's claim is that, in the selection process,
seniority should apply provided the Company is satisfied
that the most senior operator is capable and can be
trained. In exceptional cases, if the worker proves
unsuitable at a later date, the worker can be
transferred to the utility pool.
2. Acknowledging time in service is standard practice
within industry and where a shift job is available, the
usual practice is to facilitate the senior worker. This
may not be the case under the Company's criteria. The
Union can name workers, who because of some past
discipline problems, are permanently debarred from
advancement (details supplied). Workers are disciplined
through the disciplinary procedures and also through the
criteria for selection for a shift job.
3. The Company has argued that the majority of shift work
positions are offered to the most senior applicant. If
this is the case then the Company should agree to
filling shift vacancies on the basis of seniority as it
has the safety valve of the utility pool available to
it. It is not unreasonable that time served with the
Company should be given some measure of importance.
Compensation for loss of shift premiums
4. The agreed formula for compensation for loss of shift
earnings is 45 times the average weekly loss. On
occasions of rationalisation, it is the practice that
workers taken off shift are paid compensation
immediately on the loss of shift (details supplied).
5. The Union has identified nine workers who have lost
permanent shift due to re-organisation. The Company has
not yet compensated the workers for their losses. These
workers are being made to suffer for their co-operation
with the Company. The Company/Union Agreement provides
for immediate payment for loss of permanent shift. The
Company is required to uphold a long-standing agreement.
Utility pool operators
6. Workers are transferred from the utility pool on a
seniority basis to cover a shift operation or day job.
The workers thus transferred are given a week's notice
of transfer or a week's pay in lieu of notice. The
Union's claim is for this arrangement to be retained.
The utility pool was established in 1979 in the
warehouse department. There is therefore a difference
between the utility pool which is assigned to one
department and utility operators which are assigned to
provide relief to various departments.
7. It is understood by the workers that at times, short
notice of cover within a department can and does arise.
It is a condition of employment of utility operators to
move without notice. It is not a condition of
employment for the utility pool. The Company hopes to
blur the distinction between the two groups and as a
result to deprive the utility pool workers of a
reasonable period of notice.
COMPANY'S ARGUMENTS:
Seniority in appointments
4. 1. The Company's policy on filling vacancies is contained
in Article 19 of the Company/Union Agreement. The
Union's claim, if conceded, would not allow the Company
to select the most suitable candidate where there is
more than one eligible applicant. Once fair and
objective procedures and criteria are adopted, it is a
function of management to appoint the most suitable
applicant.
2. It is the Company's policy to maintain its competitive
position by large scale investments in new technology.
The complexity and sophistication of the technology and
equipment in use at the plant places an onus on the
Company to ensure that suitability and qualifications
are the foremost consideration when filling a vacancy.
This position has been upheld by the Labour Court
(details supplied). In 1993, the Company and Union
concluded an agreement known as the Future
Competitiveness Plan which recognised the technological
changes in the workplace.
Compensation for loss of shift premium
3. It is the Company's policy to compensate workers, in
accordance with the agreed formula, where the actions of
the Company resulted in permanent loss to the workers.
Of the nine workers displaced, five obtained permanent
shift positions within a short period and therefore the
issue of compensation does not arise. The Company was
prepared to compensate the other workers at the end of
1993 when it was in a position to assess their actual
losses.
4. The Company is not prepared to compensate workers in the
case of a "possible" loss. It has been shown that in
the case of five workers no compensation is warranted.
Of the other four workers, one now on permanent shift
which shows the necessity of a period of time to assess
the loss. Two workers suffered a permanent loss and
these will be compensated by the agreed formula. The
two other workers' loss of shift earnings has been
mitigated by periods of temporary shift. The Company
proposes to apply the formula on the basis of loss of
earnings.
Utility pool operators
5. Strictly speaking, the positions in the utility pool are
not essential to the normal operation of the plant. The
additional employment has been created to maximise
efficiency and ensure a speedy response to unexpected
manpower requirements. By its very nature, the utility
pool cannot be subject to normal transfer notice.
6. If the Company was required to give the utility pool
workers notice or compensation, it would undermine the
very reason for the pools existence. It should be noted
that many companies rely on temporary workers to fulfil
similar requirements.
RECOMMENDATION:
The Court has considered the submissions from the parties and
recommends as follows on the three items in dispute:-
1. SENIORITY:
The Court is satisfied that the criteria used by the Company
for selection of applicants for promotion are not
unreasonable. The Court notes in particular the recognition
given to seniority. During the course of the hearing it
became clear that the Unions main concern was the Company
taking into account the disciplinary record of applicants,
submitting that this may result in a double penalty. The
Court recommends where disciplinary penalty has been placed on
an employees record it should expire for promotion purposes
after 24 months.
2. COMPENSATION FOR LOSS OF SHIFT EARNINGS:
Having examined the Company/Union Agreement on this issue the
Court is of the view that regardless of what may have occurred
in the past the Agreement clearly refers to compensation for
loss of earnings due to enforced shift changes. The Union's
claim accordingly fails.
The Court notes in this regard the Company's position (page 11
of submission) as regards two employees who have suffered
permanent loss of earnings, and its proposal to compensate two
other employees who have worked temporary shifts by
application of the formula on the basis of actual loss of
earnings. The Court is satisfied that the other claimants
have not established "loss of earnings" and accordingly are
not entitled to compensation under the terms of the agreement.
The Court recommends the Union accept the above.
3. THE UTILITY POOL
Having considered the submissions and the arguments made the
Court does not recommend concession of the Union's claim.
~
Signed on behalf of the Labour Court
5th December, 1994 Evelyn Owens
J.F./D.T. ____________
Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Jerome Forde, Court Secretary.