FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : SMURFIT CORRUGATED CASES (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. (1) Filling of vacancies; (2) Filling of lead-hand post.
BACKGROUND:
2. Filling of vacancies;
Issue 1 deals with the appointment by the Company of two workers to the position of plant manager. The Union's objection is that these positions were not advertised, and is seeking that all vacancies up to the position of plant manager be advertised internally.
Filling of lead-hand post;
In the second issue, the Union believes that a worker (Worker No. 1) should have been appointed to the position of lead-hand post in the corrugated area, instead of the worker who was appointed (Worker No. 2). In 1997, eleven employees took voluntary redundancies and the positions were advertised. Due to the large number of applicants (65) it was agreed to waive the interviews and appoint on seniority. When the two workers (from issue 1) were appointed as plant managers, their vacant positions were advertised but, following the interview waiver above, no interviews were carried out. One of these positions was lead-hand post.
The dispute was referred to the Labour Relations Commission and a conciliation conference took place on the 11th of January, 1999. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 15th of January, 1999, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 23rd of February, 1999. The Court asked both parties to supply further information, and the hearing continued on the 7th of May, 1999.
UNION'S ARGUMENTS:
3. 1. Filling of vacancies:
It has been custom and practice in the Company that all jobs are advertised, and there are numerous examples to support this. If management has changed its policy on the advertising of jobs, it has not informed the Union.
2. Filling of lead-hand post:
Worker No. 1 has 26 years experience in the corrugated area. He has filled in the position of lead-hand on a number of occasions in 1998. The filling of vacancies in this area has always been on the basis of service. The Company admits that it mistakenly did not carry out interviews. The least worker No. 1 could expect is to be given a three month trial period to prove his ability, as has happened in similar cases in the past.
COMPANY'S ARGUMENTS:
4. 1. Filling of vacancies:
The Company appointed the two workers to the position as they were the only people who had the necessary technical and managerial skills. There was no point in advertising the jobs. The current Company/Union agreement (1983) states that "promotion shall be at the sole discretion of management". A number of people have been promoted without advertising the posts but, where possible, the Company will advertise.
2. Filling of lead-hand post:
The Company appointed Worker No. 2 to the position of lead-hand as he was the most suitable/skilled operator. Following the conciliation conference, the Company did interview Worker No. 1 and Worker No. 2 again, but felt that Worker No. 2 was the correct choice.
RECOMMENDATION:
Claim One:Filling of Plant Manager Post
The Court recommends that in future existing employees be provided with an opportunity to apply for all posts at this level.
Claim Two:Lead Hand Post
The Court has had considerable difficulty in reconciling the different understandings of the parties as to the previous practice in filling promotional vacancies. What is clear, however, is that the Union and the Company are party to a valid and subsisting agreement which makes clear provision for the filling of all such vacancies primarily on merit rather that seniority alone. The Court has consistently taken the view that the parties are expected to abide by the terms of their agreements until they expire or are voluntarily re-negotiated.
In this case, the Union contends that, notwithstanding the agreement, the established custom and practice has been to fill promotions at the level in question on the basis of seniority alone. As noted above, there is, at best, a fundamental difference of interpretation between the parties on this point.
Having regard to all of the circumstances in this case, the Court recommends that the current dispute be resolved on the following basis:
1. The parties agree that all future promotional vacancies be filled in accordance with clause 18 of their current agreement.
2. That the original appointment made by the Company be confirmed.
3. That the Company accepts that the confusion as to past practice gave the employee, whose claim to the post led to the dispute, an expectation of promotion. On this basis the employee should be paid compensation in an amount equal to twice the annual difference between his present rate and that applicable to the Lead Hand post.
Signed on behalf of the Labour Court
Kevin Duffy
2nd June, 1999______________________
C.O'N./D.T.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.