FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LTD - AND - MANDATE DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Appeal by the Union against the Rights Commissioner's recommendation No. 400/98CW.
BACKGROUND:
2. The appeal concerns a worker who is employ as a chargehand at the Company's outlet in Newbridge. She commenced employment in 1984 and worked in Lifestyle (Sports & Leisure) Unit up to October, 1997 when its ownership was transferred by way of a management buyout. Following the takeover, the worker decided to remain in the employment of Tesco and she has been employed as a chargehand since October, 1997. The worker is in receipt of a £5 per week adjustment in respect of her duties in the Off-Licence section. The Union claims that the worker is entitled to the payment of the 7½% chargehand differential. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 4th of February, 1999, the Rights Commissioner issued his recommendation as follows:
"I recommend that the Company offers and the worker accepts a weekly premium of £6.60 in settlement of this dispute."
On the 16th of February, 1999 the Union appealed the Rights Commissioner's recommendation to the Labour Court. The Court heard the appeal on the 28th of April, 1999.
UNION'S ARGUMENTS:
1. The worker received a specific offer from management that she become chargehand of the Quinnsworth Off-Licence section. She accepted the post and on seeking to confirm the remuneration pack learned that the Company intended to give her all the responsibilities of chargehand without making any additional payment above that of sales assistant. When the worker was employed in the Lifestyle outlet at No. 2 she was paid 7½% when she stood in for the chargehand during holidays or illness. The worker moved from a position of sales assistant in Quinnsworth Lifestyle outlet where she received an additional 7½% for roughly 4-8 weeks p.a. as No. 2, to a position of chargehand in the Off-Licence for 52 weeks for which she did not receive a chargehand differential.
2. The Company has not disputed that it offered the worker a chargehand post. In 1998 the Company advertised internally for a number of vacant posts including that of Off-Licence chargehand for their Rathmines branch. Details of the job outlined in the Company advertisement correspond precisely with the duties and responsibilities currently performed by the claimant (details to the Court).
3. The Union approach to chargehand posts is based on whether the worker in question actually performs chargehand duties. The worker concerned has been undertaking those duties since October, 1997 and had the same level of responsibility as chargehands in receipt of the 7½% differential. She has two sales staff under her direct supervision at various times. The Off-Licence department has a substantial turn-over. The worker carries out chargehand duties to the full. The question of precedent does not arise as the obligation to pay the 7½% chargehand differential is a statutory requirement as laid down in the Joint Labour Committee schedule.
4. In stores outside Newbridge the company has acknowledged that the level of responsibility involved in running the Off-Licence section is more than enough to justify payment of a differential. The worker is the only chargehand at Newbridge who does not receive some consideration of additional responsibilities undertaken.
5. In a previous Rights Commissioner's recommendation it was clearly established that the Off-Licence department is a post of responsibility to which a differential applies. The only issue to be decided therefore, is the level of the differential to be applied. The differential was set at £5.00 some years ago but this figure has long since been overtaken by the JLC requirement for a 7½% payment and by the Tesco/Mandate agreement in designated areas.
COMPANY'S ARGUMENTS:
1. The Off-Licence which includes the Company's range of wines, beers and spirits is a "section" or commodity grouping within the main Grocery Department. It is not a department and has not been designated by Tesco Ireland to be a department necessitating a post of responsibility. The Union has acknowledged that the Off-Licence is a "section" and not a department.
2. The departments designated by the Company as those requiring a post of responsibility are well established and include Meat, Fruit and Veg, Deli, Staff/Cash Office, Goods Receiving, and more recently Chilled/Frozen Foods. Those chargehands/managers who have been assigned to these designated posts of responsibility receive a 7½% pay differential for the overall responsibility of the department and the management of staff therein. Given the Off-Licence "section" is not a designated department and the fact that the worker has no direct accountability for other staff, the pay differential does not apply.
3. Given that the post of responsibility differential is strictly only applied to staff who manage "designated" departments, any concession of the Union's claim would set an unacceptable precedent and would give rise to similar claims throughout the Company. This would clearly have national implications and significant cost increasing ramifications.
The Joint Labour Committee for the Retail Trade acknowledge that the post of responsibility differential should only apply to those departments which are designated by the employer. Since 1982, the Union was party to an agreement on differentials and the departments that the 7½% differential applied to. The Off-Licence is not one of these.
4. An examination of the worker's duties, as described by the Union at the Rights Commissioner's hearing compared to the Department Manager's job description demonstrates that her job does not incorporate the high level of responsibility that is required from and associated with the designated posts of responsibility.
5. The claim, which is essentially for a pay increase is a cost increasing claim and is prohibited by the cost stabilisation clause of Partnership 2000.
6. The issue of the Off-Licence (Wines and Spirits) section was the subject of a previous Rights Commissioners hearing on 6th of December, 1990. In his recommendation, the Rights Commissioner recommended that the Company pay the worker at the time who worked in the Off-Licence a fixed adjustment of £5 on a red circled basis. In the interest of good industrial relations, this fixed adjustment was subsequently applied to and accepted by specific named staff who succeeded each other in the Off-Licence. Since 1990, the Company has fairly applied this £5 adjustment on a red circle basis. The Union has accepted the successive application of the adjustment on a personal basis to those workers who have worked in the Off-Licence since 1990.
7. Acceptance of the Rights Commissioner's recommendation would guarantee the worker enhanced earnings compared to her terms and conditions of employment while working in Lifestyle Sports, where the deputising adjustment was significantly less over the year. It was not guaranteed or included in holiday or sick leave entitlements.
DECISION:
Having considered the written and oral presentations made, the Court is of the view that the parties urgently need to get together to clearly define the definition of post of responsibility as it would apply to an Off-Licence department. In the meantime, the Court decides that the Rights Commissioner's recommendation should be upheld.
The appellant's claim should be examined in the light of the above review.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th May, 1999.______________________
TOD/BCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.