FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KERRY INGREDIENTS - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioners Recommendation IR12631/02/MR
BACKGROUND:
2. The worker has been employed by the Company as a mechanical maintenance craftsman since 1974. He originally was on day work but went on to 2 cycle shift from 1986-1990. He is one of a small number of workers directly employed by the Company. In 2002, following restructuring, the worker, along with a number of other employees, was required to provide "on call/call out" mechanical cover on the Charleville manufacturing site. Part of the restructuring resulted in a reduction in maintenance craft workers. The worker is prepared to provide cover up to midnight but has stated that for personal reasons (details supplied to the Court ) he cannot cover the night shift (midnight to 8.00 a.m.). The Company covers the on-call system by use of 3 contract employees and 1 direct employee.
The dispute was the subject of a number of meetings at local level, and was also referred to the Labour Relations Commission where it was suggested that the Company might try to find alternative employment for the worker. In December, 2002, the Company clarified that it did not have an alternative option. The dispute was then referred to a Rights Commissioner and his recommendation was as follows:
"I therefore recommend that the worker and SIPTU should agree to provide, with effect from 1 October, 2003, at the latest, full call out cover in line with the other maintenance personnel and as required by the Company."
( The worker was named in the above recommendation.)
The Union appealed the recommendation to the Labour Court on the 18th September, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 3rd December, 2003, in Cork, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The worker has genuine personal reasons for not working the night call out and the Company is aware of them.
2. The worker did not sign a contract, as the Company claims, which enables it to put him on"shift work" when required.
3. The call out in question could be covered by contractors, as is the present case, or by other Company employees.
COMPANY'S ARGUMENTS:
4. 1. The worker concerned is the only employee who is unwilling to work the night call out. Despite lengthy discussions over a number of meetings, he has refused to change his mind.
2. Whilst the Company does have an extra contractor to cover the situation at the moment, it cannot get one to cover all the time as is needed.
3. The Company cannot be in a position where it has to increase its staff in order to provide cover for on call.
DECISION:
The Court has given careful consideration to the Union's appeal of the Rights Commissioner's recommendation. The Court has taken into account the personal circumstances which have caused the worker to refuse to take part in the call-out roster after midnight. The Court has also taken account of the Company's stance on the difficulties this situation has presented, and is of the view that this position has been accomodated by the Company for some considerable period of time and is now causing difficulties which need to be finally resolved.
Accordingly, the Court concurs with the Rights Commissioner's findings and recommendation, and recommends that the appellant and the Union should agree to provide, with effect from 19th January, 2004, full call-out cover in line with the other maintenance personnel as required by the Company.
Accordingly, the Rights Commissioner's recommendation is upheld with a variation on the implementation date, and the Union's appeal is disallowed.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th December, 2003______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.