FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ADM RINGASKIDDY - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Case arising from LCR17029
BACKGROUND:
2. The Company operates a continuous process plant and there are a number of different shift arrangements in operation. The issue in dispute concerns the working arrangements for the Christmas holiday period, ie. 20.00 hours on the 24th of December to 20.00 hours on the 26th of December, and involves workers in the recovery section. At present the plant is manned on a voluntary basis with the aim of achieving at least 50% manning level, the minimum level required to continue operation. However, the Company claims that this voluntary system is not working due to a lack of co-operation from the employees in the recovery section. This has resulted in no production for the period in question.
In 1992, a Rights Commissioner's recommendation stated that the Company had the right to request employees to work the Christmas period. It recommended that a "once-off ex-gratia" payment of £150
(€190.46) be made to employees.
The dispute was the subject of LCR 17029 which recommended that a 2% payment under the Programme for Prosperity and Fairness (PPF) should be paid, and that the parties should enter discussion in regard to providing cover for the Christmas period. The issue has still not been resolved and was referred back to the Court by the Company on the 21st of March, 2002. A Labour Court hearing took place on the 8th of May, 2002, in Cork.
COMPANY'S ARGUMENTS:
3. 1. The plant has to operate 365 days per year. The Company/Union agreement clearly states that the Company "has the sole and exclusive right to decide the scheduling of production, the hours of shift operations... etc".
2. The Rights Commissioner's recommendation of 1992 affirmed the Company's position. A substantial number of workers accepted and were paid the £150 (€190.46) payment.
3. The Company is now in a more serious and difficult trading position than any time previously. Production lost cannot be recovered.
UNION'S ARGUMENTS:
4. 1. ADM purchased the business from Pfizers in 1990. Conditions which applied in Pfizers continued, and this included voluntary working for the Christmas period in question.
2. The Rights Commissioner's recommendation allows the Company the right to "request" employees to work during Christmas and Public Holidays. It accepted that "this has not been a feature of normal work for several years".
RECOMMENDATION:
The dispute under investigation has been outstanding between the parties for at least ten years. It was the subject of a Rights Commissioner investigation in 1992. However, the recommendation issued did not finally resolve the dispute. The question of Christmas working came before the Court in 2001, but as a side issue in the context of a dispute concerning the application of the PPF. On that occasion, the Court recommended that the parties should have further discussions with a view to finding an agreed basis on which the required cover would be provided. No agreement was reached in these discussions. The dispute was then referred back to the Court by the Company, seeking an interpretation of its agreement in so far as it relates to the obligation of employees to work on public holidays.
The agreement in question provides that the Company may require an employee to work on a public holiday or any day nominated in lieu thereof. The Union argues that Christmas Day and St Stephen's Day have never been regarded as encompassed by this provision, and that working on those days has always been on a voluntary basis.
In the Court's view, the terms of the agreement literally applied clearly gives the Company the right to require employees to work on any public holiday. The agreement as written provides no exception in the case of the Christmas holidays. However, the manner in which an industrial relations agreement has been applied over time is often as important as the written terms. In that regard, the Court does not believe that the long-standing practice in relation to Christmas working can be ignored completely.
In the Court's view, a strict interpretation of the agreement may not provide a lasting resolution to the problem. The Court remains of the view that the parties should make a determined effort to resolve the dispute by negotiation. In that regard, the Court does not believe that sufficient effort has been made to find a basis on which the necessary level of cover could be provided on an agreed basis.
The Court recommends that the parties should now make a final and determined effort to resolve by negotiation. For the assistance of the parties, the Court further recommends that those negotiations should be conducted on the following basis:
1. The Union should accept that regardless of the previous practice the business requirements of the Company are now such that adequate staffing levels must be maintained over Christmas.
2. The terms on which arrangements necessary to achieve this level of staffing should have full regard to the terms agreed with other staff already providing Christmas cover.
3. The negotiation should commence as soon as practicable following acceptance of this recommendation and should conclude by end of July 2002. If agreement is not reached, the matter may be referred back to the Court.
4. If agreement is reached on the introduction of non-voluntary cover at Christmas, in addition to any other terms agreed, those who did not accept the £150 (€190.46) payment in 1992 should now receive a payment equal to that amount adjusted by reference to increases in basic pay in the intervening period.
Signed on behalf of the Labour Court
Kevin Duffy
29th May, 2002______________________
CO'N/CCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.