FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal Of Rights Commissioner's Recommendation R-064937-Ir-08/Eh
BACKGROUND:
2. The worker has been employed with the Company since 1998. It is the Union's claim that the worker has been debarred from accessing the terms of the Management Structure Agreement concluded between the Company and Union in 2006. The purpose of the Agreement was to clarify the roles of store management going forward, particularly in relation to Chargehands, who receive a 7.5% differential for carrying out agreed roles and responsibilities. The Union argues that the worker concerned has been carrying out a number of duties that would render her in scope for the Agreement. The Company's position is that the worker should not be considered in scope for the Agreement as she does not meet the criteria outlined in the Management Structures Agreement 2006.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 8th September, 2008 the Rights Commissioner issued his recommendation as follows:
"I find that the Company and Union agreed management structures that set out the structures going forward, in particular that of the role of Chargehand.
I find that there were very clear criteria agreed between the Company and the Mandate Trade Union in order for a person to be deemed in-scope.
I find that (worker named) does not meet the agreed criteria, is not a Chargehand and is not in receipt of the 7.5% differential.
I also note that the Chargehand position in Kilbarrack was made redundant therefore the Company cannot refill that position.
I therefore find that (worker named) has not got an entitlement to be included on the in-scope list.
Recommendation:
I recommend that the claim fails"
On the 30th September, 2008 the Union 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 4th December, 2008.
UNION'S ARGUMENTS:
3. 1 The person operating the systems checking role left in 1999 leaving the worker and another colleague to maintain this workload. In reality, the worker concerned, being the full-time member of staff, was the principal person and carried out the range of duties that would render her in-scope for the Agreement
2 The worker carried out a number of duties that were listed in the 2006 Agreement. She was excluded from the Agreement on the grounds that she was not in receipt of the 7.5%.
3 Another member of staff has stated that the worker concerned trained her in systems, interviewed her for the role and that she clears any breaks or days off with the worker.
COMPANY'S ARGUMENTS:
4. 1 The Agreement between the parties clearly states the conditions required in order to be considered in scope. The worker does not carry out the roles and responsibilities of a Chargehand.
2 The position of chargehand was made redundant in 2007.
3 The worker commenced employment with the Company in May 1998 as a General Assistant and continues in that position to date.
DECISION:
Having considered the submissions of the parties, the Court can find no reason to alter the Recommendation of the Rights Commissioner.
The Court so decides and dismissed the appeal.
Signed on behalf of the Labour Court
Raymond McGee
22nd December, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.