FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : AKZO NOBEL(CROWN BERGER IRELAND LTD) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Definition Of Peak Season And Tinting Rate Of Pay
BACKGROUND:
2. The dispute concerns the Union's claim that the agreement covering the employment of temporary workers as set out in the Rationalisation Project be implemented and that the rate of Grade 1 (tinting rate) be applied to workers performing this function.
Temporary Workers
The Union claims that the Company has gone outside the agreement reached under the Rationalisation Project which states that temporary workers should only be used during the months April to September. The Company's position is that the Clause in question should be read as being flexible as the business demands can vary depending on good weather conditions and the subsequent demands for paint.
Tinting Rate
Currently there are two workers who receive the Grade 1 rate of pay. The Union is seeking that two stand-in tinters and any other workers carrying out this function receive the Grade 1 rate and that the rate be applied retrospectively. The Company rejects the claim. It argues that computerised tinting is now a common feature of the paint business and that traditionally the Grade 1 tinting rate applied to manual tinting which is a highly skilled job.
The dispute was the subject of two conciliation conferences held under the auspices of the Labour Relations Commission. As agreement could not be reached the dispute was referred to the Labour Court on the 11th of January, 2000 under Section 26 (1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 24th of March, 2000.
UNION'S ARGUMENTS: (Temporary Workers)
3. 1. The agreement should be honoured and implemented in accordance with the text and spirit of the agreement which clearly covered the engagement of temporary workers between the months April and September.
2. The agreement was arrived at to cover the peak season as defined by the Company. It was accepted by the Union on the basis that it eliminated the way temporary workers were treated by the Company in the past. The Company's contention that it has the right to employ temporary workers outside the period defined in the agreement is unacceptable to the workers.
COMPANY'S ARGUMENTS:
4. 1. While the peak season normally runs for the months of April to September, it is not confined solely to these months, as good weather conditions can result in higher demand before April or after September. The spirit of the agreement was that temporary workers would only be used during the peak season.
2. The Company must be free to hire temporary employees as and when the business demands. It is committed to the spirit of the agreement, which is that temporary workers would only be used during the peak season. £800 was paid to each permanent employee as disturbance money to cover all issues agreed as part of the 1997 agreement, including buying out the higher rate for temporary workers.
UNION'S ARGUMENTS (Tinting Rate)
5. 1. By agreement the grade and rate of tinter is long established and is listed as Grade 1 under Clause 7 of the Rationalisation Project. The Union is seeking that two stand-in tinters and any other workers carrying out the function receive the tinting rate and that the differential be paid retrospectively to the individuals concerned.
2. The claim is in line with the arrangement in place regarding forklift truck operators, whereby individuals who operate the forklift truck for any period of time receive the agreed rate for the job.
COMPANY'S ARGUMENTS
1. Traditionally, the Grade 1 tinting rate applied to manual tinters. Manual tinting is a highly skilled role, where colours are created and matched by trained tinters. Arising from the 1997 rationalisation plan the manufacturing of paint ceased at the Dublin plant and the job of manual tinting was eliminated. Two employees engaged in manual tinting at the time were red circled on the Grade 1 rate.
2. Computerised tinting is not a highly skilled job and the Grade 3 rate is the appropriate rate for the job and is the norm for general operatives.
3. The union's claim is a cost increasing claim under Partnership 2000 and the Company cannot accept increased wage costs without corresponding productivity increases.
4. The Company does not want to encourage subsequent claims from other areas of the business e.g. the Company has 8 trade centres in which shop assistants operate tinting systems at the same or lower rates.
RECOMMENDATION:
Having considered the submissions of the parties the Court recommends as follows:
Definition of Peak Season
The agreement concluded between the parties is clear and unambiguous in defining the period in which temporary staff can be employed, as being between the months of April and September. The Union's interpretation of the agreement is, therefore, correct.
It is equally clear that the purpose of the agreement was to allow the Company some flexibility to cover its season of peak demand. Unfortunately, the Company introduced rigidity into the agreement which is now restricting its effectiveness.
The Court recommends that the Company should now acknowledge that the Union's interpretation of the agreement is correct. The Union should then agree to amend the agreement so as to provide that temporary staff can be employed in the period between the months of February to October inclusive. Where a temporary employee's service exceeds six months, they should be paid the same rate as permanent employees thereafter.
Tinting Rate
The Court accepts that the Grade 1 rate is not appropriate to the computerised system, other than in respect to the employees who are red circled. For this reason the Court does not recommend concession of the Union's claim.
Signed on behalf of the Labour Court
Kevin Duffy
7th April, 2000______________________
FB/CCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Fran Brennan, Court Secretary.