Labour Court Database __________________________________________________________________________________ File Number: CD95145 Case Number: AD9539 Section / Act: S13(9) Parties: KROMBERG & SCHUBERT IRELAND LIMITED (THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION) - and - A WORKER;SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Right Commissioner's Recommendation No. ST21/95.
Recommendation:
The Court has fully considered the views expressed by the parties
in their oral and written submissions together with the Rights
Commissioner's recommendation.
The Court finds that the wording of the Agreement "applicable at
the time" allows of only the interpretation that the redeployment
calculation would be made at the time of redeployment.
Accordingly, the Court decides that the calculations made by the
Company are fully in accord with the terms of the agreement on
redeployment.
The Court, therefore, upholds the appeal of the Company.
Division: Mr McGrath Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD95145 APPEAL DECISION NO. AD3995
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
KROMBERG & SCHUBERT IRELAND LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
SUBJECT:
1. Appeal against Right Commissioner's Recommendation No.
ST21/95.
BACKGROUND:
2. In 1992, following the introduction of world class
manufacturing (W.C.M.) practices, an agreement was reached
between the Union and Company on a programme of voluntary
redundancies and redeployment for 'indirect' workers. A
compensation formula for loss of earnings on redeployment was
agreed. Workers who were redeployed went onto a 'cell rate'
and were given 4 weeks to decide whether to stay in the cell
or opt for voluntary redundancy. Section 3.2 of the
agreement read as follows:-
3.2 Redeployed people who agree to stay in the cell
rather than opt for redundancy will then be paid
compensation in two phases of the annual difference
between their current rate and holiday conditions
and the cell rate and holiday conditions,
applicable at the time.
3.2.1 Phase I : One years difference after
agreeing to stay in the cell.
3.2.2 Phase II : One years difference after
twelve months in the cell.
The reference to holiday conditions takes into account the
fact that the supervisory section had a holiday entitlement
of 21 days. On reverting into the 'cell' this would be
reduced to 20 days. The additional day is to be bought out
and compensated for where applicable.
The dispute concerns the date from which compensation is to
be paid. The Union claims that it should be paid from the
time of the W.C.M. agreement in 1992 and that the amount had
already been agreed to. The Company maintains that
compensation should be paid from the date of redeployment.
The Union contends that the amount due to the worker, a
production supervisor who was redeployed with effect from
19th December, 1994, is #6,032 from the date she agreed to
stay in the 'cell' and a further #6,032, 12 months later.
The Company maintains that the amount due to the worker is
#5,580 x 2, (inclusice fo the buyout of her additional day's
holiday) a shortfall of #904.
The dispute was referred to the Rights Commissioner and a
hearing took place on 10th February, 1995. The Rights
Commissioner's recommendation follows:-
"On balance of circumstances I have to give the Union
the benefit of the considerable doubt which exists in
this case. It is a reasonable argument that the time in
question did encompass the clearly specified period in
Clause 4 of the later agreement up to the 31/12/94.
I therefore recommend that the Union's claim for #6,032
for the claimant is conceded."
The Company appealed the recommendation to the Labour Court,
under Section 13(9) of the Industrial Relations Act, 1969, on
23rd February, 1995. A Labour Court hearing took place on
5th April, 1995, in Waterford.
UNION'S ARGUMENTS:
3. 1. The amount due to the worker was agreed in 1992 at the
time of the W.C.M. agreement. Because of the change to
the W.C.M. concept, the requirement for Q.A. inspectors
would diminish. The figures used for calculation
purposes were based on rates of pay and bonus payments
applicable to the grade. The weekly loss for a
production supervisor was #116.00 per week (x 52 =
#6,032).
2. On 19th July, 1993, the Union wrote to the Company and
again set out its calculations of the amounts agreed to
for redeployment. The Union stated that the worker was
not prepared to agree to anything less than the agreed
amount. The worker did not choose to be redeployed.
She should be compensated for the reduction in pay as a
result of the W.C.M. agreement.
COMPANY'S ARGUMENTS:
4. 1. The wording of the agreement states that the calculation
would be made on the rates 'applicable at the time'
meaning at the time of the redeployment. Normal
practice in such circumstances is to agree a formula and
apply it to the circumstances which apply when the
events which gave rise to the loss of earnings take
place.
2. The Union has not claimed that the Agreement was subject
to review. If the amounts had been agreed to in 1992
there would have been no need for a formula as in
section 3.2 of the agreement.
DECISION:
The Court has fully considered the views expressed by the parties
in their oral and written submissions together with the Rights
Commissioner's recommendation.
The Court finds that the wording of the Agreement "applicable at
the time" allows of only the interpretation that the redeployment
calculation would be made at the time of redeployment.
Accordingly, the Court decides that the calculations made by the
Company are fully in accord with the terms of the agreement on
redeployment.
The Court, therefore, upholds the appeal of the Company.
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Signed on behalf of the Labour Court
May, 1995 ____________________________________
C.O'N./D.T. Tom McGrath
Deputy Chairman