FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : TESCO IRELAND - AND - RETAIL WORKERS (REPRESENTED BY MANDATE SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. 1. Issues specific to chargehands, 2. overtime anomalies, 3. breaks.
BACKGROUND:
2. The Union's case is that staff in the existing Tesco Store in Douglas, Cork, would not be allowed to retain their existing terms and conditions of employment when they transferred to the "Extra" format store that would replace it. The Company made an announcement to that effect at a meeting on the 11th March, 2009, and it related in particular to nine pre-1996 staff made up of Chargehands and General Assistants. Chargehands were paid an additional 7.5% to reflect their duties and responsibilities. The Company put forward three options for chargehands as follows:
Option A: Apply for a Section Manager Role in the New Store with a buy-out of the difference between the two salaries of 1.5 times the Gross Annual Loss.
Option B:Become a General Assistant with no guaranteed current work patterns and a buy-out of the difference between the two annual rates of 1.5 times the gross annual loss
Option C: Redundancy at 5 Weeks Pay per year of service inclusive of Statutory Redundancy.
Two options were put to General Assistants as follows:
Option A:A buy-out of anomalies at 1.5 times the annual loss
Option B:A redundancy package as previously stated
Other issues included a number of 8-minute breaks, staff paid in cash and a sick pay scheme.
The Company's case is that due to the changing economic circumstances it could not guarantee that all workers could retain their existing terms and conditions but believes that it made a generous compensation offer to those affected.
The dispute was referred to the Labour Relations Commission and a conciliation conference took place. As the parties did not reach agreement the dispute was referred to the Labour Court on the 14th May, 2009, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 28th May, 2009.
UNION'S ARGUMENTS:
3. 1. The Company is hugely profitable and its decision to refuse to allow some long-terms staff to transfer to the new "Extra" store is based purely on opportunism. The Company's actions were not based on a need to restructure but rather as a means to pursue even greater profits.
2. The staff concerned have conditions of employment which were safeguarded under the Transfer of Undertakings Legislation in 1996 within the terms of their contracts. The Company sought to unilaterally alter their contracts.
COMPANY'S ARGUMENTS:
4. 1. The old store in Douglas could not be maintained as a viable business for the long term. The Company made every effort to try and maintain workers' terms and conditions in the new store but it was not possible in the case of a small number of employees. However, the Company believes that it offered a very generous compensation package to those affected.
2. It is not unusual for companies to revisit historical agreements and in the past the Labour Court has recognised that it is not practical to red-circle a small group of workers to the detriment of others.
RECOMMENDATION:
The Court notes that hitherto the consistent practice within the Company has been that staff transferring to new stores retain their existing terms and conditions of employment. The Court cannot see any compelling reason as to why that practice should not apply in this case.
Accordingly, the Court recommends that all staff associated with this claim be allowed to transfer to the new store retaining their current terms and conditions of employment including working patterns.
It is further noted that the Company have sought a meeting with the Union with a view to concluding a national agreement on a range of issues, including issues similar to those arising in this case. The Union have indicated to the Court its willingness to engage with the Company in that regard. The Court further recommends that issues relating to the transfer of staff to new stores should be addressed in these discussions.
Signed on behalf of the Labour Court
Kevin Duffy
8th June, 2009.______________________
CON.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.