Labour Court Database __________________________________________________________________________________ File Number: CD94185 Case Number: AD9431 Section / Act: S13(9) Parties: WATERFORD FOODS PLC - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION |
Appeal by the Union against Rights Commissioner's Recommendation DC38/94 concerning the appropriate rate of pay of a worker.
Recommendation:
5. Having considered the submissions of the parties, the Court
does not find grounds to alter the recommendation of the Rights
Commissioner. Accordingly that recommendation stands.
The Court so decides.
Division: Mr Heffernan Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD94185 APPEAL DECISION NO. AD3194
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: WATERFORD FOODS PLC
and
AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation DC38/94 concerning the appropriate rate of pay of a
worker.
BACKGROUND:
2. 1. Waterford Foods, Dairy Division, Dungarvan is a
subsidiary of Waterford Foods plc. Its processing facilities
are located on the Shandon site in Dungarvan and is primarily
engaged in the manufacture and sale of commodity type dairy
products such as milk powders, butter and casein.
2. The worker has worked as a maintenance labourer in the
Building Maintenance Section on the Shandon site for the past
ten years. When he was appointed, there were 8 staff employed
who were supervised by a qualified builder/carpenter.
Currently, there is only the worker left in this section. His
foreman availed of the Company's voluntary retirement package.
In 1989, when the number of staff in the section stood at
three, the Union sought to have half of the foreman's
differential paid to the worker. The Union contend that the
Company made an offer at that time of a #5 per week increase
in pay and if this was accepted the worker would automatically
receive the Foreman's rate when the foreman retired. The
Company deny that such an undertaking was given and claim
there is no basis for paying the worker the foreman's rate.
Prior to the Foreman retiring, the Company, in direct
negotiations with the Union, offered to pay (a) #9 per week
extra to the Worker, (b) #600 for the non-filling of the
foreman's position and (c) #400 for a buy out of overtime.
The Union and Worker agreed to (b) and (c) but rejected (a).
3. The issue was referred to a Rights Commissioner and a
hearing was held on the 7th March, 1994. The Rights
Commissioner in his Recommendation DC38/94 issued on 22nd
March, 1994 recommended:-
".... that the Company's offer of #9 per week to be fair
and reasonable and recommend that it should be accepted
by both the claimant and the Union.
...... I also recommend that the Company, as a gesture
of goodwill, in addition to their offers of #400 for
compensation for loss of overtime, and #600 for the
non-filling of the Foreman's position, should pay the
worker a further additional lump sum of #400, which I
suggest he should accept in full and final settlement.
(The worker's name was used in the Recommendation).
4. The Union appealed the Rights Commissioner's
Recommendation to the Labour Court on the 24th March, 1994.
The Court heard the appeal on the 12th April, 1994 in
Waterford.
UNION'S ARGUMENTS:
3. 1. On all occasions when the Foreman was off site on annual
leave, certified illness, etc., the worker was paid the
foreman's rate.
2. The worker's operations are not confined to the
Dungarvan location and he is servicing the Company's outside
branches.
3. A clear and unambiguous undertaking was entered into by
management in 1989 on this issue.
COMPANY'S ARGUMENTS:
4. 1. The worker should not get the foreman's rate as he will
be the only worker in the Section and will no longer be
supervising any staff.
2. The worker is not a qualified person as all the previous
holders of the foreman's position have been.
3. The foreman in the past had some responsibility and
interaction with contractors. Most of these duties will be
eliminated from the Worker's duties.
4. The foreman in the past had responsibility for
maintenance to a number of branches/offices throughout the
Country. The Workers duties have been reduced to cover the
Shandon site only.
DECISION:
5. Having considered the submissions of the parties, the Court
does not find grounds to alter the recommendation of the Rights
Commissioner. Accordingly that recommendation stands.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
28th April, 1994 -----------------
P.O'C/U.S. Chairman