Labour Court Database __________________________________________________________________________________ File Number: CD93697 Case Number: AD9410 Section / Act: S13(9) Parties: POWER SUPERMARKETS LIMITED - and - MANDATE;THE UNION OF RETAIL, BAR AND ADMINISTRATIVE WORKERS |
Appeal by the Union against Rights Commissioner's Recommendation ST366/93.
Recommendation:
7. The Court has examined carefully the background to this appeal
and has noted the results of previous investigations and
recommendation in a similar case.
The Court is satisfied that overall the Rights Commissioner's
recommendation is reasonable and should be upheld.
The Court accordingly rejects the appeal and so decides.
Division: Ms Owens Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD93697 APPEAL DECISION NO. AD1094
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
PARTIES: POWER SUPERMARKETS LIMITED
and
MANDATE
(THE UNION OF RETAIL, BAR AND ADMINISTRATIVE WORKERS)
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation ST366/93.
BACKGROUND:
2. The worker concerned is employed at the Company's Newbridge
branch as a chargehand. The Union claims that under an agreement
(in force at the time of take-over of the former Tesco store by
the Company in 1986) the claimant retains a right to work two
nights overtime per week, if she so desires, provided that she
gives Management one week's notice of this intention. The Union
also claims that, under the agreement, the worker may cease
working the second night's overtime after one week's notice.
Management rejected the claim. It has sought for a considerable
length of time to eliminate the second night of overtime working
in order to reduce costs.
3. The dispute was referred to a Rights Commissioner for
investigation and recommendation. A Rights Commissioner's hearing
was held on the 8th November, 1993. In his findings the Rights
Commissioner stated "...... the claimant has worked the second
night up to May 1992 ...... she deserves to be covered in some
proportionate way in relation to her working of the second night".
On the 15th November, 1993 the Rights Commissioner issued his
Recommendation as follows:-
"In this case I recommend that the Claimant receives #750 in
full and final settlement of all her claims and for the
withdrawal of her perceived right to work the second night
under alleged agreement and through custom and practice".
4. On the 20th December, 1993 the Union appealed the
Recommendation to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on the
24th January, 1994.
UNION'S ARGUMENTS:
5. 1. When the Company took over Tesco in 1986 it guaranteed
continuity of employment and existing contracts. The worker's
contract of employment explicitly guaranteed her a 46-hour
week. The basic rate of pay would apply to 40 hours. Late
night payments included attendance bonus and 6 hours paid at
double time.
2. The worker concerned temporarily suspended her
contractual right to the second late night in May 1992 with
Management's approval on the clear understanding that she
could re-activate her entitlement at a future date.
3. The Company clearly accepted the position relating to
the guarantee of two nights overtime in a previous claim
involving six other workers at the Newbridge branch. These
workers received substantial compensation. The loss sustained
by the claimant is no different to that sustained by the six
workers . She should be treated in the same manner and
receive similar compensation.
4. If the worker cannot be adequately compensated she
should be given the option of resuming her second night's
overtime as stipulated in her contract of employment.
COMPANY'S ARGUMENTS:
6. 1. The Company disputes the Union's claim that ex-Tesco
full-time staff have a contractual entitlement to work two
late nights per week. There is no authentic historical
documentary evidence in support of the alleged right. Old
wage listings at the time of take-over show that stock
assistants are entered for two late nights, cashiers for one
night. The worker concerned was classified as a cashier by
Tesco and was entered for one late night on the listing.
2. The Company rejects the Union claim that the worker has
a right to step up or down from late night working subject to
giving management seven days notice.
3. In September, 1993 the Company paid #1,850 compensation
for loss of earnings to six ex-Tesco full-time workers in
return for their agreement to forego the right to work a
second late night each week. The six workers had worked two
late nights since 1986. The worker concerned normally worked
only one late night per week with the exception of the period
July 1989 to May, 1992.
4. The Company employs over 6,500 staff, the majority of
whom are full-time workers. Many worked two late nights in
the past and may now be working one or no late night per week.
To award the claimant compensation for the elimination of a
perceived option which has not been regularly exercised over
the last seven years would have serious repercussions for the
Company.
DECISION:
7. The Court has examined carefully the background to this appeal
and has noted the results of previous investigations and
recommendation in a similar case.
The Court is satisfied that overall the Rights Commissioner's
recommendation is reasonable and should be upheld.
The Court accordingly rejects the appeal and so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
4th February, 1994 ---------------
T O'D/U.S. Deputy Chairperson