Labour Court Database __________________________________________________________________________________ File Number: CD93698 Case Number: AD947 Section / Act: S13(9) Parties: POWER SUPERMARKETS LIMITED - and - MANDATE;THE UNION OF RELAIL, BAR AND ADMINISTRATIVE WORKERS |
Appeal by the Union against Rights Commissioner's Recommendation No. ST 482/93.
Recommendation:
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__________________________________________________________________
CD93698 APPEAL DECISION NO. AD794
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
POWER SUPERMARKETS LIMITED
AND
MANDATE
(THE UNION OF RELAIL, BAR AND ADMINISTRATIVE WORKERS)
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. ST 482/93.
BACKGROUND:
2. The worker concerned is employed at the Company's Newbridge
branch as a systems checker. 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 labour costs. The dispute was referred to a Rights
Commissioner for investigation and recommendation. On the 15th
November, 1993 the Rights Commissioner issued his Recommendation
as follows:
"The Claimant has no sustainable case for loss and
accordingly I recommend that her Claim fails. However
as a means of settling this long standing dispute which
has had a very negative effect on the essential working
relationship and with due deference to the Company's
strongly held views on the matter, I further recommend
that the Employer pays to the Claimant the sum of #250.
as a good will gesture without precedent or prejudice
and that this sum is accepted in full and final
settlement of all claims and for the withdrawal of her
perceived right to work the second night under alleged
agreement and through custom and practice before
November, 1986 in her case."
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:
3. 1. The worker's contract of employment with Tesco stated
that the worker was expected to work 46 hours per week. The
basic rate of pay would apply to 40 hours. Late night
payments included attendance bonus and 6 hours overtime paid
at double time. This contract was later guaranteed by Power
Supermarkets Limited (details supplied to the Court).
2. The Company clearly accepted the guarantee of two nights
overtime in a previous case involving six workers at the
Newbridge Branch where substantial compensation was paid.
The financial loss sustained by the employee concerned in not
being allowed work the second night's overtime, is no
different to that sustained by the six workers. The worker
concerned is entitled to similar compensation.
3. If the claimant cannot be adequately compensated she
must be allowed the option of resuming the second night's
overtime as stipulated in her contract of employment.
COMPANY'S ARGUMENTS:
5. 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 to support the alleged right. Old wage
listings at the time of take-over show that stock assistants
are entered for two late nights and cashiers for one night.
The worker concerned was a cashier.
2. The Company rejects the Union claim that the claimant
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 has normally
worked only one late night per week since 1986.
4. The Company employs over 6,500 staff the majority of
whom are full-time workers. Many of these would have 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:
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
3rd February, 1994 Evelyn Owens
T.O'D./A.L. _______________
Deputy Chairman