Labour Court Database __________________________________________________________________________________ File Number: CD95132 Case Number: AD9547 Section / Act: S13(9) Parties: DUBLIN PORT AND DOCKS BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION;SEAMENS UNION OF IRELAND |
Appeal against Rights Commissioner's Recommendation No.ST42/95 concerning a dispute regarding the filling of the post of berthing supervisor.
Recommendation:
The Court finds that an agreement was reached in 1986 which
detailed the job description, the conditions applicable to and the
employees eligible to apply for the post of berthing supervisor.
Accordingly a vacant post of berthing supervisor should be filled
from berthing masters in charge (Clause 5 of letter of 11th July,
1986).
The Court notes that this agreement was amended in 1991 but no
reference was made regarding the filling of the post. Accordingly
the Court finds that Clause 5 of the letter of 11th July, 1986 was
still applicable.
The Court further notes that the only berthing master in charge
had indicated for reasons stated that he was not interested in
taking the job of berthing supervisor.
It is the view of the Court that in these circumstances given that
an agreement regarding the filling of the post existed that it was
incumbent on the management to discuss the procedure to be adopted
for the filling of the vacancy.
The Court finds that the action of the management to unilaterally
advertise the post universally throughout the different
departments was likely to lead to a dispute situation and not in
the interest of maintaining good industrial relations. Further
the likelihood of causing a dispute situation should have been
recognised given that the berthing master's in charge, the only
employees eligible to apply for the berthing supervisor's post
were recruited from and relieved by the berthing masters.
The Court considers the post should not be filled at this time.
The parties in the light of rationalisation and the circumstances
which arose in this case should agree eligibility criteria for
applications for the post of berthing supervisor and the vacancy
should be advertised and filled in accordance with these agreed
criteria.
The views of the Rights Commissioner regarding greater
transparency should be acted upon.
The Court so decides.
Division: Mr McGrath Mr Pierce Mr Walsh
Text of Document__________________________________________________________________
CD95132 APPEAL DECISION AD4795
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
DUBLIN PORT AND DOCKS BOARD
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SEAMENS UNION OF IRELAND
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation
No.ST42/95 concerning a dispute regarding the filling of the
post of berthing supervisor.
BACKGROUND:
2. In October, 1994, the Board invited applications for the
position of berthing supervisor in the Harbour Department.
The applicants were interviewed by an interview panel and the
successful applicant was informed that he would commence his
duties as berthing supervisor on 10th February, 1995.
The Unions objected to the Board's appointment on the grounds
that the Company's action is in breach of Clause 5 and Clause
6 of the 1986 Company/Union Agreement in relation to the
position of berthing supervisor. The Board rejected the
claim.
The Unions referred the matter to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner's
findings and recommendation are as follows:-
Findings
"1. This is a most difficult case for a third party as
there is a strong element of fait accompli present
which is unavoidable in cases such as this as the
formal objections do not emerge until after the
appointment has been made by the Employer.
Transparently that is what has happened in this case.
The Unions argues that they could not have
known the intentions of the Management in circulating
the advertisement for the post throughout the
employment. Yet they were aware that the successful
candidate was competing as it was said in evidence
that the person concerned had told a number of people
that he had gone for the job for "the experience" and
that he did not expect to get it. It seems to me
that that was the time to sound the alarm bells and
not after the appointment had been made, as in fact
happened.
2. I cannot reasonably in these circumstances intervene
to abort the process by a recommendation in the terms
sought by the Unions. The Management strongly
objects to any suggestion that its procedures were
faulty in any respect, and rejected the proposition
that an outsider be brought in to chair the interview
panel in future and commencing with a re-run of the
present disputed post. I believe that the Employer
should examine its procedures as I was concerned to
learn at the hearing that there was wide spread
disenchantment among all the staff represented by the
two Unions as a result of this appointment and with
the selection methods employed.
Recommendation
I recommend that the appointment has to be accepted
by the Unions in all the circumstances. I further
recommend that the parties should review the
procedures with a view to making the process more
transparent and in this connection they should
examine the process in other semi-state and private
employments were there is worker representation on
the panel in an observer capacity".
The Rights Commissioner's recommendation was appealed by the
Unions on 20th February, 1995 under Section 13(9) of the
Industrial Relations Act, 1969. A Labour Court hearing took
place on 28th April, 1995.
UNIONS' ARGUMENTS:
3. 1. The Board's decision to allow applications from outside
the berthing masters and related areas is in breach of
the 1986 Company/Union Agreement.
2. The Board changed the procedures for advertising the
position of berthing supervisor without any
consultations with the Unions.
3. The Rights Commissioner in his recommendation expressed
concern at the wide spread disenchantment amongst all
the workers concerned as a result of this appointment
and with the methods used in making the appointment.
4. The Board has chosen to overlook a number of berthing
masters with long service and good work records in
favour of a worker with less than 2 years service.
5. There is already a precedent set within the Dublin Port
and Docks Board in relation to promotional positions and
appointments made from specific groups, on the basis of
custom and practice and seniority within the grade. The
Board is in breach of the 1986 Agreement. In the
circumstances its decision to fill the supervisors
position with a worker from outside the berthing masters
area is not justified.
BOARD'S ARGUMENTS:
4. 1. On the understanding that the only worker eligible to
apply under Clause 5 of the 1986 Agreement did not wish
to be considered for the position, the Board invited
applications from all seamen in the Harbour Department.
2. The Board selected the most suitable applicant for the
position. In making its selection the Board had regard
to the qualities set out in Clause 6 of the Agreement.
3. Under the strict terms of Clause 5 none of the
applicants interviewed were eligible for the position.
In 1991 a new job description was agreed which
considerably widened the scope and responsibilities of
the position. It included docking and undocking of
vessels in the Board's graving docks, duties not
normally associated with berthing staff.
4. It can be argued that since 1991 the position should be
described as berthing supervisor/dockmaster and should
be opened to personnel other than berthing staff. It is
well established in the Board that seniority is only one
of a number of factors in making a selection and is only
decisive where two or more candidates are equal in
respect of other criteria.
5. The Board is not in breach of Clause 5. Events made
Clause 5 inoperable and in the circumstances the Board
acted fairly and equitably in making its selection.
DECISION:
The Court finds that an agreement was reached in 1986 which
detailed the job description, the conditions applicable to and the
employees eligible to apply for the post of berthing supervisor.
Accordingly a vacant post of berthing supervisor should be filled
from berthing masters in charge (Clause 5 of letter of 11th July,
1986).
The Court notes that this agreement was amended in 1991 but no
reference was made regarding the filling of the post. Accordingly
the Court finds that Clause 5 of the letter of 11th July, 1986 was
still applicable.
The Court further notes that the only berthing master in charge
had indicated for reasons stated that he was not interested in
taking the job of berthing supervisor.
It is the view of the Court that in these circumstances given that
an agreement regarding the filling of the post existed that it was
incumbent on the management to discuss the procedure to be adopted
for the filling of the vacancy.
The Court finds that the action of the management to unilaterally
advertise the post universally throughout the different
departments was likely to lead to a dispute situation and not in
the interest of maintaining good industrial relations. Further
the likelihood of causing a dispute situation should have been
recognised given that the berthing master's in charge, the only
employees eligible to apply for the berthing supervisor's post
were recruited from and relieved by the berthing masters.
The Court considers the post should not be filled at this time.
The parties in the light of rationalisation and the circumstances
which arose in this case should agree eligibility criteria for
applications for the post of berthing supervisor and the vacancy
should be advertised and filled in accordance with these agreed
criteria.
The views of the Rights Commissioner regarding greater
transparency should be acted upon.
The Court so decides.
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Signed on behalf of the Labour Court
23rd May, 1995 Tom McGrath
F.B./D.T. _______________
Deputy Chairman