FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EXEL MEATS (KILBEGGAN) LIMITED - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-033777-Ir-05.
BACKGROUND:
2. The Company is a totally owned subsidiary of the Dungannon Meats Group and was taken over by the Group in September, 2003. The worker has been employed by the Company (formerly Tara Meats, Galtee Meats / Dairygold ) since June 1991. In 1993 he took up the position of cleaning chargehand but, the Union claim, he did not receive the chareghand rate of pay. The Union first made its claim for the enhanced rate of pay in June, 2003, to Dairygold / Galtee Meats but no solution was found. When Exel Meats took over the Company the Union again made its claim. On the 9th of September, 2003, the Company agreed to increase the worker's rate of pay from €9.11 to €10.45 per hour to take effect from when the takeover was finalised. He eventually received the rate on the 12th of December, 2003, but the Union is seeking retrospective pay to 1993 when he first took up the position.
The Union referred the case to a Rights Commissioner and her recommendation is as follows:-
"On the uncontested evidence of the claimant I find that during the course of the claimant's employment a number of Transfer of Undertakings took place and that the respondent became the employer in September, 2003. I find that the issue of the appropriate rate of pay for the claimant's job has been outstanding for some time and that it was raised with the previous employers.
I find that as soon as the current employer took over they agreed to implement the chargehand rate of pay from September, 2003, however they did not accept any liability in respect of previous years of employment and the revised rate was not covered by the transfer of undertakings as it was not a condition of the complainant's employment prior to the transfer. I also find that there was no agreement between the parties in September, 2003, that the revised rate would be implemented with retrospective effect.
Arising from a number of factors the revised rate was not actually implemented until 12th of December, 2003. In all the circumstances of this claim and in full and final settlement I recommend that the respondent pay the claimant compensation in the sum of €800 (gross) for loss of earnings in the period September 2003 to 12th December 2003".
The Company, which did not attend the Rights Commissioner's hearing, appealed the Recommendation to the Labour Court on the 19th of September, 2005, in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 11th of April, 2003.
COMPANY'S ARGUMENTS:
3. 1. The Company did not become the worker's employer until late in 2003 and it increased his rate of pay from that time (12th of December 2003).It agreed to pay the worker the increased rate but stated that there would be no retrospection. The Company does not see why it should pay 10 years' retrospection when it was not employing the worker. .
UNION'S ARGUMENTS:
4. 1. The worker should be paid retrospection as the Union was processing the claim prior to the take over in September, 2003.
2. The Company, in paying the worker the chargehand rate, acknowledged that there was a parity issue.
DECISION:
Having considered the submissions of the parties, the Court upholds the recommendation of the Rights Commissioner and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
24th April, 2006______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.