FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : SUPERQUINN (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MANDATE DIVISION : Chairman: Mr Flood Employer Member: Mr Grier Worker Member: Mr. Somers |
1. (1.) Night shift payment for Store Manager. (2.) Overtime payment for unsociable hours. (3.) Payment for night shift workers.
BACKGROUND:
2. Superquinn is a grocery retail Company which employs approximately 5,700 staff in its 19 stores. The Union's claim concerns approximately 180 staff who are employed in 9 stores on the night shift. The claim is as follows:-
(1.) The non payment of the correct Sunday/Public Holidays Premium to night shift staff.
(2.) The non payment of the correct Unsocial Hours Premium to night shift staff.
(3.) The non payment of the correct Night Shift Managers salary.
The Union states that in March 1999, the Company and Union concluded an agreement which provided for an A, B and C contract, which have specific terms and conditions attached to each contract. All new staff were offered a C contract. The terms for night shift working were included in documents given by the Company headed "New Vacancies at Superquinn".
In June 2001, theCompany and the Union concluded another agreement for the changeover to Centralised Distribution and the New Shop Structure. The agreement provided for a range of options for the existing back store employees who were directly affected by the change, which included new jobs, alternative employment and a voluntary redundancy package.
Unsocial Hours Premium
The Union argues that as part of the 1999 Trading Agreement an unsocial hours premium of time plus a half applies to hours worked outside core hours. Staff employed on the night shift in all locations have been rostered outside the agreed core hours but have not received the agreed premium of time plus a half.
Management states that early starts had only occurred in one store and that this was the exception rather than the rule and rejected the Union's claim.
Salary for Night Shift Manager
The Union states that as part of the changeover to Central Distribution and the New Shop Structure Agreement it was agreed that the Night Shift Manager would receive a salary of £26,099(€33,138.89) plus a Night Shift premium of one third. Management failed to implement this aspect of the agreement.
The Company rejected the Union's claim. It states that the Night Crew Managers are salaried and their remuneration takes account of the nature of the hours they work. They are not entitled to a night shift premium. The Company offered €2000 as a "once off" payment to the night shift managers but this was rejected by the Union.
Sunday / Public Holidays Premium for Night Shift Staff
The Union states that the Company / Union agreement provided for the payment of time plus a half for Sunday working. The Company are only paying time plus a third, which is the normal night shift rate.
Management rejects the Union's claim. It stated that all hours worked on the night shift including Sunday and Public Holidays attracts a premium of time plus a third. The Company claims that there was no formal written agreement in respect of the night shift.
As there was no agreement between the parties the dispute was referred to the Conciliation Service of the Labour Relations Commission. Three conciliation conferences were held but agreement was not reached. The dispute was referred to the Labour Court on the 8th November, 2002, in accordance with Section 26(1) of the Industrial Relations Act, 1990. The Court investigated the dispute on the 13th March, 2003, the earliest date suitable to the parties.
Payment for Hours rostered outside core hours:
Union's Arguments:
3. 1. Staff employed on the night shift in all locations have been rostered outside agreed core hours but have not received the agreed premiums of time plus a half.
Management's Arguments:
4. 1. Those employees rostered outside core hours and who come in early did so on a voluntary basis.
2. The practice of rostering employees outside core times has now been discontinued.
Salary for Night Shift Managers:
Union's Arguments:
5. 1. It was agreed that the salary for the night shift manager would be £26,099
(€33,138.89) plus a night shift premium of one third.
2. There was an expectation that a night shift premium would apply.
Management's Arguments:
6. 1. The night shift premium for managers was stated in error, as there was no night shift premium available for this post.
2. The contract of employment for night shift managers made no reference to a night shift premium.
Premium Time for Sundays and Public Holidays:
Union's Arguments:
7. 1. The Company is deliberately contravening the terms of our agreement in order to avoid paying the correct agreed rate. This is nothing more than a cynical act
to cut costs.
2. The agreements in position require the Company to pay time and a half for staff working Sundays and Public Holidays.
Management's Arguments:
8. 1. There was no formal written agreement concluded in respect of night shift arrangements.
2. Night Shift workers are paid a rate of 33.3% for public holidays. In addition
staff have the option to take a day in lieu at a time agreeable with local management.
RECOMMENDATION:
The Union claims that the arrangements for night shift were arrived at during discussions on the distribution agreement in June 2001. The Company argue that the arrangements for night shift were not completed in those discussions and that the Union never responded to its proposals.
The Company believes that the introduction of the new night shift operation is not covered by any other agreement in position in the Company.
The Union on the other hand quote three separate agreements, and in particular the 1999 agreement. They also argue that the terms for night shift working were included in documents given by the Company headed “New Vacancies at Superquinn”.
The Court finds it extraordinary that given the nature of the major change that was taking place with the introduction of a night shift that there were not comprehensive discussions to arrive at an agreement, which would surround the introduction of a night shift. However, the Court has been asked to make a recommendation in relation to three issues in dispute and therefore recommends as follows: -
- 1.Payment for Hours rostered outside core hours:
- The Company argued that employees were rostered outside core hours in only one store and those who did come in early did so on a voluntary basis. The Union stated that the practice extended to a number of stores.
The Court is satisfied that this practice has now been discontinued and while it may have operated in some stores for a period of time, once it was raised with management in the negotiations it was discontinued. This should be accepted by Union as addressing the problems as raised.
- The Company argued that employees were rostered outside core hours in only one store and those who did come in early did so on a voluntary basis. The Union stated that the practice extended to a number of stores.
- 2.Salary for Night Shift Manager:
- The Court cannot accept that the document produced in appendix 1 of the management's submission which outlines the terms and conditions that would apply over a range of jobs, and specifically refers to a number of posts covered in the night shift arrangement, did not in any way indicate the rates that would apply for the job. While management argue that the shift premium mentioned in relation to the night shift managers post was a mistake, as there was no night shift premium available, the Court nevertheless is satisfied that it did raise expectations that a night shift premium would apply.
As a means of resolving this dispute, rather than apply a nightshift premium to the post, given that it is a managerial post, the Court recommends that the
€2000 offered as a lump sum to employees, be paid as an annual allowance on top of the basic salary of €33,138.89 (£26,099).
- While the Company argue that there is no formal written agreement in relation to night shift arrangements, the Union case is that the agreements in position in the Company require that the Company pay time and a half.
- The Court cannot accept that the document produced in appendix 1 of the management's submission which outlines the terms and conditions that would apply over a range of jobs, and specifically refers to a number of posts covered in the night shift arrangement, did not in any way indicate the rates that would apply for the job. While management argue that the shift premium mentioned in relation to the night shift managers post was a mistake, as there was no night shift premium available, the Court nevertheless is satisfied that it did raise expectations that a night shift premium would apply.
that the arrangements for Sundays and Public Holidays should be less than those
currently in the Company. The Court therefore recommends that the time and one
third, which the Company has offered, be amended to time and a half for both Sunday
and Public holiday time.
The Court is conscious that there appears to be a significant deterioration in the industrial relations climate in the Company and recommends that the parties do all in their power to amend this situation in the interests of all involved directly and indirectly in the Company business.
Signed on behalf of the Labour Court
Finbarr Flood
31st_March, 2003_______________________
LW/BRChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Larry Wisely, Court Secretary.