FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioners Recommendation IR20820/04/DI.
BACKGROUND:
2. The case before the Court concerns an appeal by the Union of Rights Commissioner's Recommendation IR/20820/04/DI. The worker in question is employed by Tesco as a sales assistant and is in receipt of a 7.5% differential to take account of the additional responsibility applicable to his position in the Company.
The Union are claiming that the employee was trained as, and carried out the duties of, a Baconhand and as a result should benefit from an Agreement in 2003 known as the "Meat and Deli Agreement".
This Agreement provides for a lump sum payment of €3000 if remaining in the employment of the company, or alternatively, access to a redundancy package.
The Company's position is that the employee concerned was employed with Tesco in 1993 as a Sales Assistant. Baconhands have not been recruited by the company since 1986. As a result the claimant has no entitlements to benefits under the 2003 Meat and Deli Agreement.
The matter was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 13th January, 2005 as follows:
" I accept the Company's position that it ceased recruiting or training Bacon Hands from 1986. Furthermore, I believe that the worker is correctly designated as a Sales Assistant with a 7.5 % differential for the extra responsibility he carries.
I find against the complaint."
The worker was named in the Rights Commissioner's Recommendation. On the 19th January, 2005, the union (on behalf of the worker) 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 29th April, 2005.
UNION'S ARGUMENTS:
3. 1. The worker in question is trained as a baconhand and is currently in charge of that department in the absence of the chargehand.
2. The redundancy elements of the Meat and Deli Agreement have been offered to the claimant but the lump sum payment has not.
3. It is claimed that the worker in question is employed as a Sales Assistant but no Sales Assistants have been trained to the extent of the claimant.
COMPANY'S ARGUMENTS:
4. 1. The claimant has not served the appropriate training period to be regarded as a qualified Baconhand.
2. A differential of 7.5% above the appropriate Sales Assistant rate is paid to the worker to take account of the extra responsibilities.
3. No Baconhands have been employed since 1986. The worker commenced employment in 1993, 7 years after baconhands ceased to be recruited by the company.
4. The worker was not involved in or party to the Meat and Deli Agreement concluded in 2003.
DECISION:
Having considered the views of the parties expressed in their oral and written submissions, the Court is satisfied that the appellant is not covered by the Meat and Deli Agreement 2003.
The Court is satisfied that his duties are not those of a Baconhand; the recruitment of Baconhands ceased a number of years prior to this appointment and he was not listed in the 2003 Agreement. Accordingly, the Court upholds the Rights Commissioner's recommendation and the Union's appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
May, 2005______________________
AH/MB.Caroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.