Labour Court Database __________________________________________________________________________________ File Number: CD93695 Case Number: AD948 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 No. ST 484/93.
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__________________________________________________________________
CD93695 APPEAL DECISION NO. AD894
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 No. ST 484/93.
BACKGROUND:
2. The worker concerned is employed at the Company's Newbridge
branch as a sales assistant/cashier. 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. As part of the Tesco takeover by Power Supermarkets the
Company guaranteed all workers continuity of employment under
their existing contracts. The contract of the worker
concerned 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 (two nights)
paid at double time.
2. The worker temporarily suspended her contractual right
to the second late night in 1986 with management's approval
on the clear understanding that she could re-activate her
entitlement at an unspecified date in the future.
3. The Company clearly accepted the postions relating to
the guarantee of two nights overtime in a previous claim
involving six other workers at the Newbridge branch. Those
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:
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 is a cashier.
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 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