FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : EIRCOM - AND - COMMUNICATION WORKERS' UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Arrears of subsistence and mileage.
BACKGROUND:
2. eircomowned a mobile telephone business known as Eircell. A number of employees of eircom were assigned to Eircell and were entitled to receive travel and subsistence payments. On 14th May, 2001,eircomsold Eircell to Vodafone and a number of employees of Eircell became employees of Vodaphone. The 14th of May, 2001, was known as the de-merger date. Concurrently, the main Unions ineircomlodged a claim for an increase in the travel and subsistence rates covering a period of time prior to and after the de-merger date. Arrears of rates were paid byeircomand Vodaphone to their respective employees. A dispute arose as to which Company was liable for arrears for the employees who had been assigned to work in Eircell (whilst employed byeircom) but transferred to Vodafone at the de-merger.
The arrears claimed are in respect of the following claims:
(1)eircomsubsistence rates
eircomsubsistence rates were increased in June 2002 as follows:
From 1st January, 2000 - 31st December, 2000 : Day rates 3.23%, Night rates 3.24%
From 1st January, 2001 - 14th May, 2001 : Day rates 13.94%, Night rates 13.95%
There is, therefore, a compounded increase in rates claimed for the period from January, 2001, to May 2001.
(2)eircommileage rates
eircommileage rates were increased at November 2003 as follows:-
From 1st January 2001 - Increased by 12.71%
From 1st January 2002 - Increased by 3.13%
Only the January 2001 increase is of relevance to the CWU claim for payment of arrears to Vodafone employees as the employees in question had moved to Vodafone by the date of the second increase (i.e.1st January 2002).
eircomis prepared to pay retrospection on both claims for the period January to March, 2000, but believes that Vodafone should be liable for the other payments, i.e. up to 13th of May, 2001. According to the Union, Vodafone has paid arrears backdated to 14th of May, 2001, for subsistence and mileage and feels that it has fully met its obligations. It does not believe it is liable for any arrears prior to that date.
The dispute was referred to the Labour Relations Commission and a conciliation conference took place. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 2nd of February, 2005, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 19th May, 2005.
UNION'S ARGUMENTS:
3. 1. The Union believes that as the workers were employees ofeircomup to the date of de-merger -14th May, 2001, -eircomwould be liable for all arrears prior to that date. There is no dispute that the money is owed.
COMPANY'S ARGUMENTS:
2. Under the terms of Clause 2.7 of the agreement betweeneircomand Vodafone relating to Eircell, arrears from January to March, 2000 are the responsibility ofeircom. Vodafone is responsible for the period April 2000 to 14th May, 2001, when the de-merger took place.
RECOMMENDATION:
The dispute before the Court relates to a claim by the Union for arrears of subsistence (arising from a Joint Conciliation Council claim) for the period 1st January 2000 to 13th May 2001, i.e. prior to the date of transfer of the Eircell business to Vodaphone.
A dispute arose as to which Company was liable for arrears of rates for employees who had been assigned to work in Eircell (whilst employed byeircom) but transferred to Vodaphone at the de-merger. In response to the claim,eircomcontend that Vodaphone are responsible and it relied on clause 2.7 of an agreement betweeneircomand Vodaphone which provides that liabilities due in respect of the period April 2000 to May 2001 are the responsibility of Vodaphone. It also pointed to a disclosure letter from the CEO ofeircomto Eircell, which listed as liabilities, unresolved Joint Conciliation Council claims.
As requested by the Court at the hearing, the Company indicated that it reviewed the provisions governing dispute resolution in the contract documentation relating to the de-merger betweeneircomand Vodaphone and confirmed that in the event of a dispute arising, the Irish Courts would have jurisdiction. It also informed the Court thateircomwas not prepared to refer the matter to the Irish Courts at this time.
While the Court is not in a position to give a legal interpretation of the agreement, having considered the matter, the Court concurs witheircom's view that Vodaphone are the party liable for the arrears payment for the period 1st January 2000 to 13th May 2001 under clause 2.7 of the de-merger agreement. However, the Court also recogniseseircom's willingness, as a gesture of goodwill, to accept an obligation to pay a partial payment of the arrears in an attempt to resolve this issue.
The Court recommends that the Union should accept the offer of a partial payment fromeircomas a gesture of goodwill on their part. The parties should meet to discuss and finalise this payment and if no resolution is agreed by the end of September 2005, the issue may be referred back to the Court for a definitive recommendation.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th July, 2005______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.