FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : TAYTO LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. (1) Commission, pay and conditions; (2) Payment for Saturday working.
BACKGROUND:
2. The dispute before the Court concerns two separate claims by the Union on behalf of workers employed by the Company as salesmen. The first issue relates to the terms and conditions of employment of 6 new salesmen. The second pertains to the rate of pay applied since 1989 to salesmen for Saturday working. Local level discussions took place but progress could not be made and the dispute was referred to the Labour Relations Commission. A conciliation conference took place on the 17th of October, 1997. As progress could not be made the dispute was referred to the Labour Court on the 10th of November, 1997 under Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 25th of November, 1997.
Commission, Pay and Conditions:
Since late 1996 it has come to the Union's attention that the Company has introduced new wage and commission structures for new entrants. Under the old contract of employment sales staff have a commission system of 1% on wholesale, 1.5% on crisps and 2.5% on other items. Under the new contract a flat rate of 1% on sales is envisaged. In addition the Company proposes 21 days annual leave. This is in contrast to a potential 32 days (21 days plus 5 service days after 20 years service plus 6 days in lieu of the 39 hour week). The Union is seeking to have the terms and conditions of existing salesmen applied.
UNION'S ARGUMENTS:
3. 1. Management's arbitrary reduction in agreed terms and conditions is in direct contravention of a standing agreement.
2. At no stage did Management seek negotiations to secure any amendments to the agreement.
3. The Company's argument that the workers concerned agreed to revised conditions is unacceptable. It is the Union's contention that it was the workers' understanding that the conditions offered are the terms and conditions negotiated by the Union. If this situation was accepted then every negotiated agreement could be negated by the recruitment of new employees on changed terms and conditions.
4. This is a highly unusual departure from Company practise as all changes in relation to routes, restructuring and productivity have been secured by negotiation and agreement.
The Union is seeking that the Court recommends that the existing agreement be applied to these new entrants retrospectively and that any alterations be agreed by negotiation.
COMPANY'S ARGUMENTS:
4. 1. The Company cannot concede the full terms and conditions of existing van sales staff for the 6 new employees. Tayto operate in an increasingly competitive environment dominated by factors outside its control, including the influx of UK Multiples into the Irish market, the rising interest in centralised distribution and the alleged entry of the World's largest Snack Food Manufacturer into the Irish market.
2. The terms and conditions of employment were clearly explained to the 6 workers at the time of their appointments.
3. All other salesmen within the Company will be unaffected by this proposal. Their current commission structures will effectively be "red circled" and consequently protected within the agreed parameters of route changes etc.
4. The Company's final proposal as outlined on the 21st of September (details supplied) and rejected at conciliation is reasonable. Based on the earnings of the average salesmen, it provides the salesmen with the opportunity to earn substantial earnings in excess of the industry norm.
5. The annual leave proposal of 21 days plus service days is reasonable. The six salesmen in question were appointed after the introduction of a 39 hour week for which existing salesmen received an additional 6 days annual leave. It is unreasonable to expect the Company to concede this claim. 21 days represents a reasonable amount of annual leave and is in excess of the current national minimum of 16 days. The Company has experienced severe difficulties in coping with the extra 6 days granted to salesmen on the introduction of the 39 hour week.
6. Van sales staff have enjoyed and existing permanent staff will continue to enjoy generous terms and conditions of employment in excess of industry norms. In the growing competitive environment in which the Company operates, this spiralling cost is unsustainable and eroding the Company's competitiveness at an increasing rate. The proposals being put forward by the Company represent a genuine effort on its part to honour its commitment to van salesmen.
Payment for Saturday Work:
During 1996 it came to light that overtime payments for Saturday work had not been adjusted in line with appropriate national wage agreements from 1989 to 1995. The Company has offered 2 years retrospection. The Union is seeking full retrospection.
UNION'S ARGUMENTS:
5. 1. The Company's argument that it is not in a position to pay the outstanding monies due because no records of Saturday working are available is unacceptable to the Union.
2. The Company has refused to consider individual records of Saturday working. These figures could be used to form the basis by which the amounts due can be approximated through discussion and agreement. In the circumstances the Company's offer of 2 years retrospection is unreasonable.
COMPANY'S ARGUMENTS:
6. 1. Company records show which employees worked Saturdays during 1994, 1995 and 1996. The Saturday rate paid was correctly adjusted and paid for the year 1996, and has continued in 1997 (i.e. soon as this matter was brought to the Company's attention the rates were corrected).
2. The only additional records which currently exist are for years 1994 and 1995. The Company has offered to adjust the rates for all Saturdays worked in those years and pay the shortfall. The Company cannot be expected to make arbitrary payments for any years prior to 1994 as no records exist to show what Saturdays were worked and by whom.
3. Accordingly, the Company is seeking that the Court recommends that its proposal as put forward both at local level and at conciliation is reasonable and should be accepted.
RECOMMENDATION:
While understanding the Company requirement to be competitive in its operations, the Court is satisfied that there was insufficient discussion and negotiations on the Company proposal to change the terms and conditions of employment for these new salesmen.
In relation to the points made by the Company on its financial situation, the Court is not in a position to consider these as the Company indicated it would not be putting any evidence on this before the Court.
The Court having considered all the information presented recommends that terms and conditions as heretofore apply, for the new entrants, but that discussions commence immediately on the Company proposals. These discussions to be completed before 1 March 1998.
On the matter of the outstanding monies for the period when no records exist 1989/94, the Court recommends that the parties meet to agree a formula for payment of these monies.
If the parties fail to reach agreement on either of the above issues they can refer back to the Court.
Signed on behalf of the Labour Court
Finbarr Flood
14th January, 1998______________________
F.B./S.G.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Fran Brennan, Court Secretary.