FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DRYCREEK LIMITED. T/A BROWN'S BARN (REPRESENTED BY O'MARA GERAGHTY MCCOURT, SOLICITORS) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR8310/02/Fl.
BACKGROUND:
2. The appeal concerns a worker who was employed as a Senior Bar person from December, 2000, until March 2002. The Union claimed that increases under a pay agreement reached with the Licensed Vintners Association (LVA), of which the Employer is a member, in June, 2000, incorporating increases under the Programme for Prosperity and Fairness (PPF), were not given to the claimant. The Company rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 4th December, 2002 the Rights Commissioner issued his recommendation as follows:
"I recommend that the respondent pay the claimant €7,857.03 compensation in full and final settlement of her claim".
On the 15th January, 2003 the Company appealed the recommendation to the Labour Court. The Court heard the appeal on the 12th March, 2003.
COMPANY'S ARGUMENTS:
3. 1. The claimant and the employer concluded a contract regulating her term's and conditions of employment including her rate of pay. The Employer observed the terms of that contract during the course of the claimant's employment.
2. The collective agreement of June, 2000, is not binding and is aspirational only. Its terms were recommended by the LVA to members. In the absence of the express agreement of a member of the Association the terms of the agreement are neither legally nor morally binding on that member.
3. The employer joined the LVA in April, 2002. The employee left the Company in March, 2002. It would be unjust if the collective agreement, aspirational in nature, should be applied retrospectively to the claimant's employment subsequent to the termination of her employment.
4. Concession of the claim could have significant consequences for the Employer resulting in consequential claims from former staff and would almost certainly lead to job losses.
5. If the collective agreement were to apply to the claimant she would fall under the category 'flexible labour pool' rather than 'full time bar staff working a 39 hour week', to which the collective rate applies. The claimant worked flexible hours and not the set roster during the course of her employment.
UNION'S ARGUMENTS:
4 1. The rates of pay in the Dublin Licensed Trade are governed by agreements negotiated between the LVA and the Union together with the increases negotiated with the social partners in respect of National Wage Agreements.
2. The Union refutes the Employer's claim that the worker's roster of days and not nights meant that she did not qualify for the rate. The worker made it quite clear that she was at all times available to work a flexible roster. The Employer changed her roster from mixed shift to that of day shift.
3. The claimant suffered a deficit in her wages amounting to €7857.03 for the period December, 2000 to March, 2002. The deficit resulted largely due to the employer's failure to pay the terms of the PPF. The Employer did not plead 'inability to pay' under Clause 7 of the PPF.
DECISION:
It is noted that in their submission to the Rights Commissioner and again before the Court the Company claimed that the agreement made between the LVA and MANDATE is not binding on individual members of the Association. The Court cannot accept that submission. The agreement was negotiated by the Trade Union representing bar staff and the LVA and it must have been implicit that the terms of the agreement would be binding, for industrial relations purposes, on the members of both bodies.
However, in this case the employer was not a member of the LVA in the period covered by the Union's claim. This was not brought to the attention of the Rights Commissioner. Whilst the Company could now be regarded as party to the agreement in question they could not have been so regarded during the currency of the claimant's employment. In these circumstances concession of the claim retrospective to a date before it was made is not justified.
The Court notes that the claimant was not provided with particulars in writing setting out the conditions of her employment. This may have given rise to some confusion as to the basis on which her pay was to be calculated. The Court further notes that in its submission to the Rights Commissioner the Company did not raise the point regarding the timing of its affiliation to the LVA and did not appear to attach any weight to this matter.
In light of the information now furnished, the Court does not believe that the recommendation of the Rights Commissioner can stand but the Court is of the view that, in all the circumstances of the case, some compensatory payment is justified.
The Court determines that the Company should pay the claimant €2,000 in full and final settlement of her claim.
The appeal is, to that extent, allowed and the recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
30th April, 2003______________________
TODDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.