FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner R-052576-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 Since 2001 as Chargehands leave the business or as the Company opens new stores the role of Department Managers has been replaced by Section Managers.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 Bray for 23 years, 15 of which have been engaged in the Cash Office. Ten years ago, due to the absence through illness of the Cash Office Chargehand, the worker took over the responsibilities of that post and was awarded a 7.5% pay differential. Although the Cash Office Chargehand returned after 4 months she was frequently absent thereafter through illness and the worker continued to fill her post. Consequently she has continued to retain the 7.5% differential and the Union believes that she should qualify under the Agreement.
The dispute was referred to a Rights Commissioner and his recommendation was as follows:
"Having considered written and oral submissions from both parties, I find as follows:-
The Management Structure Agreement negotiated between the parties in 2006 lays down clear criteria for inclusion on the charge-hands "in scope" list. The Union has argued that the Claimant has been carrying out the role of charge-hand since 2005 due to the permanent absence of a designated charge-hand. The Company accepts that the Claimant is in receipt of the 7.5% premium payment but does not accept that she has been carrying out the role and responsibilities of charge-hand. The Company also argued that since 2001 where charge-hands leave the Company they are not being replaced. This role is now carried out by section managers.
I find that the Claimant does not have the right to be considered "in-scope" as she does not meet the agreed criteria under the Management / Union Structures Agreement 2006. It is very important that both parties adhere to the terms of the 2006 agreement.
I recommend in favour of the Company."
The Union appealed the recommendation to the Labour Court on the 5th August, 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. It is accepted by the Company that the worker has been in receipt of the 7.5% differential for the last 10 years thus satisfying the first qualification stipulation.
2. Since 2005, due to the permanent absence of the designated Chargehand, the worker has totally performed the role thus satisfying the second stipulation and qualifying for inclusion under the Agreement.
COMPANY'S ARGUMENTS:
4. 1. The worker does not carry out the role and responsibilities of a Chargehand nor does she manage a department. Indeed she reports to two Front-End Section Managers.
2. The worker was awarded a 7.5% pay differential for Chargehand duties over a 4-month period in 1998 to cover for the absent Chargehand. When the Chargehand returned the worker reverted to role of General Assistant although she continues to retain the differential under previous agreement.
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 were 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 has worked in the Cash Office Department in the Bray store since 1996. She had been in receipt of 7.5% post of responsibility since 1998, when she assumed responsibility in the absence of the Chargehand for a period of four months. Since that time the Company has allowed her to retain the 7.5% differential, however, it submitted that she has not been carrying out the role of Chargehand in the intervening years.
The Union told the Court that the appellant has been carrying out the role intermittently over the years due to absences by the Chargehand and since 2005 she has been assuming the role on a continuous basis.
The Company accepted that the appellant has been the replacement Chargehand in the absence of the designated Chargehand, but stated that since 2001 two Section Managers have also had responsibility for the Cash Office Department.
Having considered the submissions of both parties, the Court is satisfied that the appellant has been carrying out the role of Chargehand on an intermittent basis since 1998, but on a continuous basis since the absence of the designated Chargehand commenced on a continuous basis in 2005. Consequently, the Court is satisfied that the appellant meets both elements of the criteria for eligibility under the terms of the 2006 Agreement.
Therefore, the Court overturns the recommendation of the Rights Commissioner and finds in favour of the appellant’s 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.