FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR1360/00/MR.
BACKGROUND:
2. The appeal concerns a worker who has been employed since 1983 at the Company's store in Shannon. She had been a Sales Assistant and a Relief Supervisor before, the Union claims, being appointed to the position of Manager of the Off Licence in April, 1997. The worker received a wage adjustment of £7.50 per week in 1998 following Union representations. When the Off Licence later became a separate department, the Union claimed that the worker should be paid the minimum chargehand differential of 7.5%. Management rejected the claim on the basis of an agreement of 1982 which stipulated what departments would receive the differential. Management claimed that the Off Licence was not a designated department, that the worker was a Sales Assistant and was paid accordingly. The dispute was referred to the Rights Commissioner for investigation. On the 11th of December, 2000, the Rights Commissioner issued his recommendation as follows:-
"I therefore recommend that Tesco Ireland should increase the worker's differential from the current figure of £7.50 per week to the minimum Chargehand differential of 7.5%, effective from the 1st of February, 2000. If the Company continues to maintain that the worker's post should not be a designated post of responsibility, then the parties should agree that the payment of this differential is on a red circled basis and applies only to the worker". (The worker was named in the Right's Commissioner's recommendation).
On the 19th of January, 2001, the Company appealed the recommendation to the Labour Court. The Court heard the appeal in Limerick on the 22nd August, 2001.
COMPANY'S ARGUMENTS:
3. 1. The current status of the Off Licence in the Company's stores is that it is not a department with a collectively agreed post of responsibility. A position is only a post of responsibility if designated by the Employer as set out in the Joint Labour Committee for the Retail Trade (JLC). Since 1982, the Company has agreed with the Union representing the majority of staff, a list of collectively agreed designated departments which does not include the Off Licence section. Given that the Off Licence is not a designated department and the fact that the claimant has no designated responsibility for other staff, the pay differential does not apply.
2. The claimant's duties are wholly or mainly those of a Sales Assistant for which she is paid the appropriate rate. The Company is already carrying an anomaly in her pay as she receives a red circled adjustment of £7.50.
3. Any concession of the Union's claim without collective agreement with the Company would set an unacceptable precedent and give rise to similar claims throughout the Company with national implications and cost increasing ramifications.
4. The Company must reserve the right to determine its own management structure based on the needs of the business into the future. At this stage the future management structure does not envisage a post of responsibility in the Off Licence.
UNION'S ARGUMENTS;
4. 1. Since October,1999, the Off Licence is a designated department within Tesco Shannon. It is comparable to similar departments in Tesco Ennis and three Tesco stores in Limerick. In the Ennis and the Limerick stores, the Off Licence Manager receives the minimum 7.5% differential over the top point of the scale. The claimant is doing a similar job and should,therefore, receive the 7.5% differential.
2. While Management states that the Off Licence Manager position is not a designated post of responsibility, it is for each location to make a case on its merits. This was done in the Ennis and Limerick situations. The Off Licence in Shannon has grown from a section within the store to that of department with a very significant turnover.
3. In defining posts of responsibility, the Employment Regulation Order for the grocery trade states that the holder must be designated by the employer to be responsible for the work of other staff or for the operation of a shop, or a department within the premises as defined within the establishment order. The claimant is designated as the Off Licence Manager and is, therefore, holding down a post of responsibility. She has a role in managing workers, one full time and part time cover, in driving sales and in achieving profit. It is illogical that the Company can recognise the claimant as the Off Licence Manager yet refuse to recognise the position as a designated post of responsibility.
DECISION:
The Court is satisfied that management at local level considered that the claimant had a duty higher than that of sales assistant.
In the particular and singular case presented, the Court upholds the Rights Commissioner's recommendation, emphasising the "red circle" nature proposed. The appeal is, therefore, dismissed.
Accordingly, the Court upholds the Rights Commissioner's recommendation.
Signed on behalf of the Labour Court
Caroline Jenkinson
3rd September,2001______________________
TODDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.