FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AER LINGUS - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Owens Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation No. 954/97.
BACKGROUND:
2. The dispute concerns one worker, a catering operative working in the Flight Kitchen of the Company's catering department at Dublin Airport. The Company, due to the seasonal nature of its business, employs approximately 300 temporary seasonal operative staff for varying periods during peak operations, including approximately 200 catering operatives. Vacancies which may arise for permanent workers are generally filled from the ranks of these temporary workers. The claimant who was first employed, on a temporary contract, on the 2nd of March, 1992, was made permanent on the 31st of July, 1995. An agreement was entered into by the Company and the Union on the core number of permanent staff in the catering department in April, 1995, which enabling the Company to augment the permanent employees with temporary employees when required.
A subsequent agreement was reached, in February, 1997, which addressed a number of anomalies and which resulted in the claimant being given a date of entry of the 18th of February, 1993, one year after her actual date of entry. The Union claims that a serious anomaly exists in respect of the claimant if her actual service is compared to that of some other employees. The Union states, further, that when the agreement was concluded, the worker was not in a position to state her position, being on sick-leave. The Company's position is that the agreement reached covers all employees, including the claimant.
The matter was the subject of investigation by a Rights Commissioner who found that there were not sufficient reasons to overturn the agreement in favour of the worker concerned. He found also that she was not unfairly treated in the circumstances, and recommended that the Union and the worker accept the Company's position on the matter.
The Union appealed the Rights Commissioner's Recommendation to the Labour Court, on the 22nd of January, 1998, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 30th of March, 1998.
UNION'S ARGUMENTS:
3. 1. Colleagues of the worker (details supplied) had their temporary dates of entry recognised by the Company, the days between termination and re-employment being considered as annual leave. Accordingly, service was deemed to be unbroken.
2. Neither the Union nor the worker had any control over her period of lay-off.
3. The worker was on sick-leave during and after the time the agreement was reached and was not in a position to air her views on the matter.
4. An oversight has led to this anomaly. When the claimant's actual working service since her original recruitment is compared to that of some colleagues (details supplied), her entitlements would be equal to theirs.
COMPANY'S ARGUMENTS:
4. 1. All aspects of the worker's contract of employment have been honoured by the Company. She was originally employed as a seasonal catering operative and at all times it was clear that during those periods, her employment was of a temporary nature.
2. The Company has not perpetrated any wrong in replacing a temporary contract with a permanent one. The Company has recognised that there were anomalies in the employment position of a number of workers and has addressed that anomaly by means of agreement with the Union.
3. In the operations division of the Company, in excess of 2000 staff are employed, including clerical, operative and cabin crew employees. Almost all are recruited as seasonal employees prior to proceeding to permanent employment. Concession of this claim could have considerable repercussive effects in these areas.
DECISION:
The Court accepts that there are arguments on both sides relating to the above case, which arose from the efforts of the parties to settle an earlier unsatisfactory lay-off situation.
Given that there is an agreement signed between the Union and the Employer regarding the circumstances of the transfer to permanency of the applicant, that others are similarly affected by this agreement, the Court on balance does not see fit to change the Rights Commissioner's recommendation.
The Court recommends that a formula relating to recognition of past service in the event of transfer to permanency be agreed by the parties if further difficulties of this nature are to be avoided in the future.
Signed on behalf of the Labour Court
Kevin Duffy
20th April, 1998______________________
M.K./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.