Labour Court Database __________________________________________________________________________________ File Number: CD93696 Case Number: AD949 Section / Act: S13(9) Parties: POWER SUPERMARKETS LIMITED - and - MANDATE;THE UNION OF RETAIL, BAR AND ADMINISTRATIVE WORKER |
Appeal by the Union against Rights Commissioner's Recommendation No. ST 483/93.
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__________________________________________________________________
CD93696 APPEAL DECISION NO. AD994
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 WORKER)
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. ST 483/93.
BACKGROUND:
2. The worker concerned is employed at the Company's Newbridge
branch as a 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. A Rights
Commissioner's hearing was held on the 8th November 1993. In his
findings the Rights Commisoner stated ".... the claimant has
worked the second night up to 1991 ..... she deserves to be
covered in some proportionate way in relation to her recent
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 #500 in
full and final settlement of all her Claims and for the
withdrawl of her perceived right to work the second night
under alleged agreement and through custom and practice.
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 worker's contract 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 1991 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 positions 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 nights
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 1991.
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
4th February, 1994 Evelyn Owens
T.O'D./A.L. _______________
Deputy Chairman