FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : INDEPENDENT NEWSPAPERS - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Proposed restructuring/outsourcing of clerical functions.
BACKGROUND:
2. The dispute concerns the Company's proposals to comprehensively restructure the clerical functions and to negotiate a new Company/Union agreement. The Company employs 167 clerical staff across a number of functions including advertising, Circulation, Finance IT and HR. It proposes to restructure the clerical function as follows:
(i) A voluntary redundancy scheme for 142 clerical staff.
(ii) All staff remaining in the Company to continue to enjoy current pay and conditions of employment.
(iii) If and when staff do leave, remaining staff to be redeployed as required within the overall clerical function and work to be outsourced in line with the needs of the business going forward.
The Company sought Union agreement on the following:
(i) No fixed staffing numbers in the different clerical sections.
(ii) No demarcation coupled with complete flexible redeployment of clerical staff and the use of other workers across clerical functions.
(iii) Outsourcing as required by business needs based on numbers remaining.
At local level negotiations the parties agreed to the appointment of an Independent Meditator to further the process. His report was subsequently rejected by the Union following a ballot of the workforce. The dispute was referred to the Labour Relations Commission. A conciliation conference was held but agreement was not reached. The dispute was referred to the Labour Court in December, 2003. A Court hearing was held on the 23rd January, 2004. The hearing was adjourned to enable the parties to re-engage at local level discussions and conciliation under the auspices of the Labour Relations Commission. A further conciliation conference was held on the 13th February, 2004 after which the following issues remain unresolved:
(i) Compensation
(ii) Domestic Relocation
(iii) Disciplinary Procedure
(iv) Cover for Leave / Absence
(v) Payment by Credit Transfer
(vi ) Sick Leave
The dispute was referred to the Labour Court on the 13th February, 2004 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A resumed Court hearing was held on the 16th February, 2004.
UNION'S ARGUMENTS:
3. 1.Compensation:- The changes outlined in the Company proposals are fundamental and far reaching. They will have a very substantial impact on every clerical worker. Agreement to the proposals will yield substantial cost savings and efficiencies. The Union is claiming a phased lump sum of €6,500 on date of acceptance of the agreement (with a claim back for the employer from those who opt for voluntary redundancy in the first 12 months) €5,000 when the current staffing cost has been reduced by 39 posts and a further €5,000 when 94 posts have been lost.
2.Domestic Relocation:-The Company agreed at conciliation in December 2003 to meet all of the costs/expenses incurred in any domestic relocation. The Company made no exemption or exclusion from this agreement. The Company subsequently reneged on this commitment and have now excluded stamp duty and benefit in kind. All expenses incurred in a domestic relocation should be met by the Company.
3.Disciplinary Procedure:-Disciplinary Procedure should be in line with good practice in Unionised employment. It should not be implemented until a member(s) right to appeal has been exhausted i.e. up to and including a hearing by an appointed third party i.e. a Rights Commissioner.
4.Cover:-The current practice in relation to cover in the clerical sector is for the employer to provide cover for holidays in departments designated for cover in the current agreement over six weeks, for maternity and career breaks. The status quo should remain in respect of cover.
5.Credit Transfer:-The majority of clerical staff are paid weekly by cash. A small group opted for payment by Credit Transfer. The Union's position is that the status quo should remain and payment by Credit Transfer should not be imposed on clerical workers.
6.Sick Leave:-In relation to the remittance of Social Welfare cheques the Union position is that for the first four weeks sick leave the cheques should be retained by the individual to whom they are made payable. Thereafter, and up to when a worker goes on half pay the cheques should be remitted to the employer. While on half pay and until Income Continuance commences, the worker to whom the cheque is made payable should retain the cheque.
COMPANY'S ARGUMENTS:
4. 1.Compensation:-The Company has made a goodwill gesture to workers remaining of (i) €1,500 when 40 workers depart voluntarily, (ii) €1,500 when 95 workers depart voluntarily.
2.DomesticRelocation:-The Company did agree at conciliation to cover "fully expenses". The Company understood this to mean auctioneers, removal expenses etc., along with the difference in housing costs. No mention was made of the Company paying obligatory taxes stamp duty and benefit in kind on any of the items listed as appropriate for compensation. The Company proposes that the issues can be referred on an individual basis to a Rights Commissioner for investigation.
3.Disciplinary Procedure:-Currently all in house disciplinary procedures provide for continuity of payment while suspension is invoked, via the disciplinary process, up to and including the conclusion of an internal appeal. The reasons are to encourage internal appeals, and to avoid situations where a third party, whoever they may be, being put in a position where they "apply" the sanction. This is the responsibility of the Company. The workers choice of exhausting the internal process first and "appealing again" externally is not affected by this practice.
4.Cover:-Cover was historically provided by the recruitment of temporary /casual staff for all forms of leave and absence that extended beyond six weeks. Recent changes in legislation have resulted in this becoming cost prohibitive. However, more importantly, the nature of this staff reduction programme renders it unnecessary. The trigger mechanism will at all times provide surplus resources as numbers decline. The Company has responsibility for the decision relating to cover. If required, flexibility and priority will govern cover requirements.
5.Credit Transfer:-The majority of staff in the Company are paid by Credit Transfer. The retention of payments by cash, even for a small number, would require the Company to retain a clerical post just to service cash payment to these remaining staff. It would also result in the Company having to retain cash transit insurance costs and cash envelopes, printing and filling costs. The Company has progressively, through revisions/renewals of its collective agreements, implemented the Credit Transfer process in all sectors.
6.Sick Leave:-Currently the equivalent of the single persons Social Welfare Benefit is deducted from pay while absent through illness, regardless of the actual amount of social welfare received. The current application to the clerical staff results in a situation where a person is better off out sick. This is a charter for absence. The Company wishes to amend the scheme and bring it in line with that which applies to other staff in the employment.
RECOMMENDATION:
Following extensive discussion and negotiations on a proposed restructuring/outsourcing plan for the clerical and administrative functions of the company, considerable progress was made by the parties and a number of outstanding issues were referred to the Court for recommendation. These were identified as follows: -
- Claim for Compensation for agreement to radically restructure the clerical/sales function
- Domestic Relocation
- Outstanding Issues under Part A of the Collective Agreement
-Disciplinary Procedure
-Cover for Leave/Absence
-Payment by Credit Transfer
-Sick Leave – Social Welfare Cheques
Claim for Compensation for agreement to radically restructure the clerical/sales function
The Court has considered the Union’s claim for compensation in return for their agreement to accept the changes proposed by the company. The changes involved in the proposed restructuring plan, as outlined in the Union’s submissions [pages 2 and 5] are in the Court’s view substantial and consequently warrant a compensation payment greater than that offered by the company. Therefore, the Court recommends the following: -
- Payment of €3000 on date of acceptance of agreement, a further €2000 when the staffing level has reduced by 40 positions and a further €3000 when the staffing level has reduced by 95 positions.
Domestic Relocation
Due to the requirement to outsource the circulation process there will be a need to redeploy four Development and Circulation Representatives to central headquarters, as internal staff leave or take up promotional opportunities in other sections. Consequently the issue of relocation expenses was an issue between the parties. A dispute arose over what items should be included as expenses which the company should bear the cost of.
Having considered the positions of both sidesthe Court recommends that stamp duty costs, if applicable, should be deemed to be an expense in the same way as auctioneer’s and legal fees, involved in the transfer of a residence and should accordingly be paid. The Court recommends that the issue of benefit in kind and voluntary severance for the staff involved in the relocation should be a matter for a Rights Commissioner in an appropriate referral at an appropriate time.
Outstanding Issues under Part A of the Collective Agreement:
Disciplinary Procedure
The Union sought that with the exception of cases of gross misconduct, disciplinary action considered by management should not be implemented until an employee has exhausted all appeal mechanisms, including a hearing by a third party. The Court is of the view that such a claim is not a feasible proposition and does not recommend in favour of the Union’s claim. Accordingly, the Court recommends that the company’s current position as outlined is reasonable and should be accepted by the Union.
Cover for Leave/Absence
The Union sought the retention of the existing arrangement in respect of the provision of cover for all forms of leave and absences that extend beyond six weeks. The company are of the view that such cover will no longer be necessary in the context of the proposed staff-restructuring programme.
The Court accepts the company’s view that the concept of the provision of cover in the circumstances outlined does not conform with the proposed movement away from a defined number of job roles which this proposed agreement aims to eliminate. Therefore, the Court recommends that the Union accept that cover will be provided from within existing resources, with the company accepting responsibility for any shortfall.
Payment by Credit Transfer
The Court has considered the Union’s claim for the retention of payment by cash for those employees who opt for this method of payment. The Court is of the view that payment by cash is an outdated and unsafe method of payment and should be eliminated. Accordingly, the Court recommends that those staff currently paid by cash should accept the introduction of payment by credit transfer, by no later than 1st October 2004.
Sick Leave – Social Welfare Cheques
The Court cannot accept that employees should gain financially by being out on sick leave, consequently the Court recommends that the existing sick pay scheme should be amended to bring it into line with the scheme which applies to all other staff.
Conclusion
The above recommendations are made on the understanding that they, together with the items already agreed between the parties, will be put to a ballot of the Union members as a composite package in full and final settlement of all issues relating to the company’s proposals on restructuring/outsourcing.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th February 2004______________________
TOD/BRDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.