FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : CADBURY IRELAND LTD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Credit for previous service.
BACKGROUND:
2. The case before the Court concerns a claim on behalf of an individual for credit for previous service with the Company. The Union state that in the late 1980's, the Company, because of the need to cover increased production, decided to set up a weekend shift. This shift normally worked 35 hours between Friday pm and Monday am. An agreement was reached between the Unions and the Company in order to avoid any knock-on effects on the core group of workers (39 hour group and part-time evening workers). The weekend shift was a stand-alone shift with its own seniority group and separate to all other seniority groups.
The Unions claim that the worker concerned took up the option of transferring into the 39 hour group on a "day one" basis on the 16th June, 1997. The worker is now seeking to have his accumulative service on the weekend shift credited to him for seniority purposes.
Management rejected the claim and states that it is operating fully in accordance with Company / Union agreements.
As there was no agreement between the parties the dispute was referred to the Conciliation Service of the Labour Relations Commission. A conciliation conference was held on the 3rd February, 2003 but agreement was not reached. The dispute was referred to the Labour Court on the 8th March, 2003 in accordance with Section 26(1) of the Industrial Relations Act, 1990. The Court investigated the dispute on the 10th June, 2003.
UNIONS' ARGUMENTS:
3. 1. The worker concerned was a member of the "weekend shift" which was a separate seniority grouping in the Company. These workers were not entitled to "permanency".
2. The worker argues that the Company/Union agreement was negotiated by the Unions representing production workers. It was balloted on and agreed by the membership. The Company and the Unions changed it without consulting the members.
3. The worker took up a position as a permanent day worker and started off with no seniority. The Company and the Union subsequently reached agreement to accord "permanency" to weekend shift workers who had more than two years service. The worker claims that he should be afforded credit for his previous service as a "weekend shift" worker.
4. If the claim is conceded it will seriously impact on some permanent staff working the 39 hour week.
5. The Court is asked to establish the rights of the worker and his colleagues in relation to seniority.
COMPANY'S ARGUMENTS:
4. 1. The Company/Union agreements clearly state that all employees will achieve permanency after two years continuous service. It was not envisaged back in 1992 that the weekend shift would run for more than two years.
2. Weekend employees were granted permancency on the weekend shift only as a stand-alone shift. They did not have the right to apply for jobs within the other seniority groupings.
3. The worker opted to join the 39 hour group because that was the best option for an employee to be made permanent in 1997. Permanent weekend work was not available at that time.
4. The agreement that allows weekend employees enter the other seniority groupings on a day one basis was only arrived at after much discussions and interventions from the Labour Relations Commission and the Labour Court.
5. The Industrial Relations Officer (IRO) has given his view that "it is fundamental of a seniority based system that the rules are not subject to change i.e. that the ground does not shift under people". This is what the claimant wishes to do.
RECOMMENDATION:
The claim submitted on behalf of the claimant is for the inclusion for seniority purposes, of service accrued while employed in a separate seniority grouping.
It is clear to the Court that it would be directly contrary to the current Union/Company agreement to concede this claim. It would also be contrary to the clearly expressed terms on which the claimant accepted the transfer to the Group on which he is currently employed.
In the Court's view the current seniority arrangements, which appear to have the support of the great majority of Union members within the employment, could not survive if ad hoc adjustments were to be made to accommodate individual claims. In the present case the claimant accepted appointment to the 39 hour grouping on the basis that his ranking for seniority would be on a day one basis.
In so far as the claimant's grievance relates to the introduction of permanency for the weekend shift, it is noted that this occurred in July 2002. The Protection of Employees (Part-Time Work) Act 2001 came into effect in December 2001. Undoubtedly, this legislation would have rendered unlawful the practice of excluding part-time workers from the arrangements by which equivalent full-time workers could attain permanency. The claimant cannot now claim an advantage to which he would not otherwise be entitled merely because the Company complied with its statutory obligations in changing the conditions of part-time workers.
In all circumstances the Court does not see any basis on which it could recommend concession of this claim.
Signed on behalf of the Labour Court
Kevin Duffy
23rd June, 2003______________________
LW/BRDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Larry Wisely, Court Secretary.