FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CAHILL MAY ROBERTS GROUP PLC - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal Of Rights Commissioner's Decision R-031847-IR-05/TB
BACKGROUND:
2. The Claimant was employed by the Company from April 1999, until her departure to take up employment with another Company in August 2005. She was initially employed as a permanent warehouse operative but was subsequently appointed to an administrative, salaried position in May 2000. In January 2004, having attained five years service, the Union sought application of the Company Service Leave Agreement to the Claimant ,which included an additional days leave, totalling twenty one days, in accordance with the agreement. The Company rejected this on the basis that in 1998 the Service Leave to new employees was discontinued in accordance with the Comprehensive Labour Agreement which they had signed with the Union in 1998. Employees of the Company pre- 1998 retained their service days on a "Red Circled" basis. The Company contends that the Claimant was employed post 1998 and therefore is not entitled to the service days. The Union contends that members of the Administration area of the Union were not party to the 1998 Agreement and the members have not signed up to the Labour Agreement 1998.
- The matter was referred to a Rights Commissioner for investigation and recommendation. At the Rights Commissioners hearing the Union submitted a letter from the Company dated June, 2003, stating that the members represented by the branch "have not signed up to, and are not party to, the Labour Agreement 1998". It was the Company's contention that the letter of June, 2003, was written in a particular context and was never intended to be interpreted as now suggested by the Union.
- The Rights Commissioner's findings and recommendation issued on the 15th September, 2005, as follows:
“On the basis of the June 2003 letter I have to conclude that the Claimant is not covered by the 1998 agreement. I recommend in favour of the Union's claim.”
The worker was named in the Rights Commissioner’s Recommendation.
On the 30th September, 2005, the Company appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th December, 2005.
- The Rights Commissioner's findings and recommendation issued on the 15th September, 2005, as follows:
COMPANY'S ARGUMENTS:
3. 1. The Rights Commissioner erred in basing his recommendation on one document and failed to take into account that the 1998 Labour Agreement between the Company and the Union, which followed national negotiations, was signed on behalf of the Union nationally for all sectors. The Claimant accepted her contract in May 2000, which states that her annual leave will be twenty day and has no mention of service leave.
2. In 2003, the Company introduced a new Personnel Management System which required employees to register their attendance using a swipe card. Agreement was reached in principle with all groups in all the branches to the introduction of the new swipe card clocking system. The Labour Agreement clauses 10.3 and 10.5 refers to the clocking system being the basis for calculation of wages etc. Salaried staff are not hourly paid and the paragraphs clearly do not refer to them. The clauses were clearly aimed at Wages or hourly paid employees. The statement in the letter of June 2003, on which the Rights Commissioner made his recommendation was in reference to this issue and was made to assure Salaried staff that the Company was not changing their salary calculation method.
3. The Company accepts that the letter of June 2003, was badly worded but does not accept that this negates the restructuring that was carried out in 1998 or the agreements reached.
UNION'S ARGUMENTS:
4. 1. Terms and conditions of employment of Administration Staff in the Company are negotiated and agreed with this branch of the Union and any change to agreed terms and conditions must be through negotiation and agreement with the representatives of the staff concerned.
2. There was no discussion or agreement between Union representatives of the Administration Staff and the Company on a discontinuation of the service leave entitlement to new entrants from 1999 onwards. The Company's decision to discontinue applying service leave to post 1999 Administration Staff is a clear breach of the Union/Company agreement. The Company's unilateral action regarding service leave is completely unacceptable.
3. The entitlement to service leave is an integral component of the agreed terms and conditions of employment for Administration Staff in the Company. The Claimant, having attained five years service in January 2004, was entitled to one additional days leave. The Company should apply the terms of the Union/Company agreement to the Claimant retrospective to 2004.
DECISION:
The Union on behalf of the claimant indicated to the Court that it was not aware of any changes having taken place to the conditions of employment of administration / salaried staff as a result of a Labour Agreement concluded in 1998. The Company on the other hand, hold the view that this agreement, which clearly states that for the future service leave will only apply to permanent employees employed at the date of the commencement of the agreement, was entered into and negotiated by all branches of the Union on behalf of all employees in the Company at the time. The Court has difficulty in reconciling these opposing positions.
Having considered the views of the parties expressed in their oral and written submissions, the Court is of the view that the claimant's contract of employment signed on 8th May, 2000, clearly states that her annual leave entitlement is 20 days per annum and, therefore, the Court does not recommend concession of her claim for entitlement to service leave.
Accordingly, the Company's appeal is allowed and the Court overturns the Right's Commissioner's recommendation.
However, due to the confusion regarding the scope of the 1998 Labour Agreement, and bearing in mind that service leave had been discontinued for the majority of employees, the Court recommends that discussions should take place between this branch of the Union and the Company in order to bring clarity to this issue for the future.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th December 2005______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.