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: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of a Rights Commissioner's Recommendation R-052577-Ir-07/JW
BACKGROUND:
2. The Union's claim is for the inclusion of the worker under the relevant terms of the nationally agreed Management Structures Agreement 2006 (the Agreement). The main purpose of the Agreement was to clarify and introduce store management structures having specific regard to the Chargehand role. Chargehands are a group of Department Managers who are in receipt of a 7.5% differential for managing their department. Since 2001 as Chargehands leave the business or as the Company opens new stores the role of Department Managers has been replaced by Section Managers. It was agreed that in order to be considered "In-Scope" for the options contained in the Agreement staff are required to meet the following criteria:
Section B - Scope, point 14
"A named list of the following Chargehands who are currently in receipt of 7.5% post of responsibility and whom are still carrying out the Department Manager role in their Store."
Section B - Scope, point 15
"A named list of red circled Chargehands whose terms and conditions are red-circled as a result of replacement store agreement (and who have been red circled by previous local company/union agreements with the exception of the 2003 Meat and Deli agreement) and currently perform GA duties".
Whilst most individuals were identified as satisfying the criteria there were a number who required further consideration, including the worker concerned. This involved Sections 16 and 19 of the Agreement.
The worker has been employed in Tesco Ballyfermot for 28 years. In 1985 she became responsible for the designated Cash Office department. In 1993 she commenced a year-long career break. She did not return to her original position -the Company activated a clause which states"the Store may not be in a position to give them their previous position,"but was engaged in a number of positions whilst retaining her 7.5% differential. In 2004 the worker had a serious medical episode and, consequently, she has not returned to work. She is currently classified as long-term absent.
When the worker's name was not included in the list of Chargehands for the Agreement the Union initiated an appeal as per Section 16 of the Agreement. The Company's response was that the worker did not return from the career break into the Chargehand role although she retained the 7.5% differential and, thus, was not eligible for consideration. The case was referred to a Rights Commissioner and his recommendation was as follows:
"Having considered both written and oral submissions from both parties, I find as follows:-
1. The Claimant stepped down as a charge-hand when she took a leave of absence in 1994. On her return in 1995 she was appointed as a sales assistant. In 1996 she applied for the position of charge-hand but her application was not successful. The Union has argued that this was because of management's interpretation of the career break policy. This policy states "the store may not be in a position to give them their previous position, however, a mutually convenient arrangement should be organised". The Company applied the career break policy at the time as was their right according to the agreement.
2. I find that the Claimant does not meet the requirements for access to the Management Structures Agreement 2006.
- Tesco Ballyfermot is not a replacement store.
- The Claimant does not carry out the role of charge-hand.
- The position of charge-hand was made redundant in 2007.
The Union appealed the recommendation to the Labour Court on the 7th July, 2008, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 23rd September, 2008.
UNION'S ARGUMENTS:
3. 1. The worker fulfils the criteria for eligibility under the Agreement. It is accepted by the Company that she has been in receipt of the 7.5% differential for 28 years, thus satisfying the first qualification stipulation (Section B - point 14).
2. When the worker returned from her career break it was management's decision that she did not actively resume her role as a Chargehand. However, she was allowed to retain all the privileges of a Chargehand and, again, this should afford her eligibility under the terms of the Agreement.
COMPANY'S ARGUMENTS:
4. 1. The worker was not included on the final In-Scope list as she does not carry out the roles and responsibilities of a Chargehand. On her return from her career break she took up the role of a Sales Assistant.
2. Solely being in receipt of a 7.5% differential does not entitle the holder to be entitled to considered a Chargehand. If that were the case the options within the Agreement would be open to numbers far in excess of what would be tenable for the Company.
DECISION:
The matter before the Court concerns an appeal of a Rights Commissioner’s Recommendation, which found in favour of the Company’s position. The claim dealt with the exclusion of the appellant from the Management Structures Agreement 2006.
The 2006 Agreement clarified the Store Management Structures for the Company going forward and in particular the role of Chargehand. The criteria for eligibility under the agreement was two fold, an eligible employee must: -
1. be on a named list of Chargehands who are currently in receipt of 7.5% post of responsibility, and
2. still carrying out the Department Manager role of Chargehand in their store.
The appellant was in receipt of 7.5% post of responsibility on a red-circled basis but was not carrying out the role of Chargehand. The Union argued that she should be deemed eligible as she had held the role of Chargehand prior to going on a 12 month career break in 1994, but was not allowed to resume her role on her return. Therefore, it deemed that she should be considered in a unique situation and should be covered by the terms of the Agreement.
The Court notes that on her return from the career break, while she retained the 7.5% post of responsibility differential she did not challenge her role as General Assistant and continued in that role until her absence in 2004.
The Court is satisfied that the appellant does not meet the criteria under the terms of the 2006 Agreement and finds that there is no merit in the claim that she should be favourably considered for inclusion.
Accordingly, the Court upholds the terms of the Rights Commissioner’s Recommendation and rejects the claim.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th October, 2008______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.