FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : TESCO IRELAND - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Compensation for loss of free samples "yellow book".
BACKGROUND:
2. In 1999, as part of a restructuring programme, the Company moved away from its then direct delivery system to a centralised distribution system. Following negotiations with the unions concerned, including SIPTU, and the issuing of a Labour Court Recommendation the Company reached agreement with SIPTU in February 2002, in respect of the ‘Yellow Book’ issue and a compensatory sum was paid to individuals named and identified as beneficiaries by the Union. The agreement was reached inFull and Final Settlementof the Unions claim in relation to the ‘Yellow Book’ issue.
In February 2003 SIPTU was party to an agreement in relation to all qualified Butchers and Bacon Hands in the Company and their roles and responsibilities. As part of this agreement it was agreed that there would be no future productivity claims or repercussive claims arising from the implementation of this agreement.
The dispute before the Court concerns a claim by the Union on behalf of the Butchers it represents in the Company to be treated as equals with their colleagues in the back stores. The Union are seeking compensation for them on the basis that they also benefitted from direct deliveries to the butchery department and lost out as a result of the centralisation of distribution.
The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached , the dispute was referred to the Labour Court on the 17th February, 2006, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 23rd March, 2006.
UNION'S ARGUMENTS:
3. 1.The Union's members were led to believe that they would be afforded the same settlement as the back storemen.
2. The loss to the Union members as a result of the Company's restructuring programme is identical to that of the back storemen.
3. The Company treated this minority part of the workforce totally differently from their colleagues. This is deemed to be discriminatory and unfair.
COMPANY'S ARGUMENTS:
4. 1. Following agreement between the Company and the Union in relation to the loss of the 'Yellow Book' the Company made a payment in full and final settlement of this claim.
2. The details of the distribution of the monies paid by the Company in settlement of the claim was a matter entirely for the Union and the individuals concerned.
3. This is a cost-increasing claim which is prohibited under Paragraph 1.5 of the Sustaining Progress Agreement.
RECOMMENDATION:
The issue before the Court concerns the Union's claim on behalf of Butchers based in the Company's Dublin stores for compensation for the loss of free samples and gifts by suppliers (referred to as loss of the "yellow book"), when the Company centralised distribution to its stores in 1999/2000.
The Union contended that agreements reached with Mandate and SIPTU following Labour Court Recommendation No 16493, which applied to other grades in Dublin and to Butchers outside of Dublin, should similarly apply to the Claimants in this case.
The Company held that the agreement reached with SIPTU in February 2002 was in full and final settlement and provided compensation payments which the Union could divide out as appropriate to its members. In this case, the Dublin SIPTU Butchers maintained that they were a separate branch and were entitled to a separate agreement, along the lines of the payments paid to the two Unions.
The Court notes that this claim has not been quantified; no value has been ascribed to the compensation payments sought nor to the number of Claimants.
The Court has considered the views of the parties expressed in their oral and written submissions and examined the nature of the claim. It is accepted by both parties that the agreements referred to above were the process by which LCR No 16493 was implemented. The Court in LCR No 16493 referred to the "exceptional circumstances" of the case and recommended that some compensatory arrangements should be put in place for any loss of the benefit. This Court takes the view that the "exceptional circumstances" referred to were the practice of suppliers giving free samples and gifts at the goods receiving area and was not an employer/employee matter - however, with the Company's decision to centralise distribution to its stores the practice was about to cease with significant losses for the workers involved, therefore some form of compensation was warranted in those circumstances.
In the case of the Dublin Butchers, who are party to this claim, it was stated that this practice ceased in 2003 for most of the Claimants.
Having considered the events, the Court is of the view that the Dublin Butchers may have had a legitimate claim following LCR No 16493, however, two events occurred: (i) they were excluded from benefitting under the two agreements with Mandate and SIPTU and (ii) the "yellow book" practice continued on for at least a further period of three years.
The Court is of the view that the continuation of the practice does not fall within the criteria of "exceptional circumstances" as referred to by the Court in LCR No 16493, the Butchers have had ample notice of the centralisation of distribution of the Company's stores and in some instances continue to benefit from the "yellow book" practice. Consequently, the Court cannot be held responsible for any loss which may have been sustained.
Therefore, the Court rejects the Union's claim.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th April, 2006______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.