FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : MARKS & SPENCER (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Payment arising from change of hours in the Company's Grafton Street store.
BACKGROUND:
2. The dispute concerns a claim, on behalf of eight warehouse staff in the Company's Grafton Street store, for a lump sum payment, arising from changes to their working hours. The issue of change in working hours was the subject of a strike, in 1995, in the Company's Mary Street branch, and was the subject of a Labour Court recommendation, LCR14736, following which a lump sum of £17,000 was to be paid to workers affected by such changes. The Company claims that the settlement of the Mary Street dispute involved the understanding that no further claims would arise in the event of a change to working hours in the Grafton Street branch. The Union's position is that, at the time of the settlement, in 1995, it was understood that the £17,000 payment applied only to the Mary Street staff and the Grafton Street staff would be entitled to the same payment if the hours there were to change subsequently. The distribution of the £17,000 lump sum, paid by the Company, was handled by the Union and, the Company claims, if no allocation was made at the time to staff in Grafton Street, then responsibility rests with the Union. The dispute was the subject of a conciliation conference under auspices of the Labour Relations Commission, at which agreement was not reached. The dispute was referred to the Labour Court on the 1st of September, 1999, in accordance with Section 26(1) of the Industrial Relations Act, 1990. The Court carried out its investigation on the 8th of November, 1999.
UNION'S ARGUMENTS:
3. 1. On the termination of the 1995 dispute, the staff at the Grafton Street store were aware that, when the new premises there were completed, the Company would introduce the same changes for some warehouse staff and the same formula of compensation would apply to them.
2. While the 1995 dispute was based on a claim on behalf of 26 members of staff, other members of staff went on strike in support of them. In both parties' submissions to the Labour Court, the dispute was referred to as concerning 26 workers. On termination of the dispute only the 26 claimants voted on resolution proposals.
3. At an arbitration hearing in 1996 on whether the £17,000 was a gross or nett amount, the Company confirmed that it had a detailed breakdown on the formula for the distribution of the £17,000.
4. It is reasonable for the staff in the Grafton Street store to expect that the formula that applied in Mary Street should apply to them, in circumstances that are similar in every respect.
COMPANY'S ARGUMENTS:
4. 1. The Company has fully honoured the agreement and had paid the monies in good faith for distribution at the sole discretion of the Union. Any difficulties arising form the distribution should be addressed to the Union and not to the Company.
2. In September, 1995, the issue of whether the monies proposed should be paid gross or nett was raised by the Union. The Company disputed the claim, but agreed to refer it to an arbitration hearing. During this arbitration, following which it was decided that the £17,000 should be increased to £25,000, the issue of Grafton Street was not raised despite the fact that payment to the Mary Street staff had already been made.
3. The Company is aggrieved to be brought before a third party for the third time on this issue. Not only does the Company believe that it has honoured the agreement but also that the settlement was full and final. Additionally, the Company has revisited the 1995 agreement once and is not prepared to do so again.
RECOMMENDATION:
In this case the Court has been asked to interpret the scope of an agreement made between the parties in 1995 to settle an earlier dispute. The agreement itself is silent on the point at issue and the parties have diametrically opposed understandings of whom it was intended to cover.
The agreement was concluded to settle a dispute following the rejection by the Union of recommendation LCR14736. That recommendation related only to the staff employed at the Company's Mary Street store. In the absence of any indication to the contrary in the written agreement, it must be assumed that it was intended to apply to the same group of workers as the Court recommendation.
On this basis, the Court is of the view that the staff employed at the Grafton Street store were not covered by the agreement of August, 1995.
Accordingly, the Court recommends that the Union's claim for a pro-rata payment to those workers be conceded.
Signed on behalf of the Labour Court
November, 1999______________________
M.K./D.T.Kevin Duffy
Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Michael Keegan, Court Secretary.