FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : TESCO IRELAND - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Issues pertaining to Transfer of Undertakings.
BACKGROUND:
2. On 12th October 2009 Tesco Ireland announced its intention to transfer roles in the transport department, including drivers to Stobart (Ireland) Ltd. The transfer is scheduled to take place on the 12th November, 2009.
The Union raised a number of issues in relation to the transfer which will affect about 80 drivers.
A series of meetings took place between the Company and the Union seeking clarification on the issues. No satisfactory resolution could be found.
The dispute could not be resolved at local level and was the subject of two conciliation conferences under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 4th November, 2009, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 9th November, 2009
RECOMMENDATION:
It is noted that the Union referred a number of issues to the Court, which are related to, or arising from, the proposed transfer of the Company’s ambient transport business. Those issues included a claim for an enhanced voluntary redundancy package for workers who do not wish to transfer to the transferee employer.
At the commencement of the hearing the Company representative told the Court that it did not consent to the issue involving redundancy payments being referred to the Court and it objected to the Court dealing with this matter.
This matter is before the Court under Section 26(1) of the Industrial Relations Act 1990. Under that provision the Court can only deal with matters which are jointly referred to it by the parties to the dispute. In this instance the employer is not prepared to join with the Union in a referral of this matter and accordingly the Court cannot issue any recommendation on the question of voluntary redundancy terms.
In respect to the other matters the Court recommends as follows: -
Terms of the transfer
It is noted that the proposed transfer comes within the ambit of European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. Consequently all conditions of employment of the affected employees and all collective agreements to which they are party transfer to the transferee employer who is obliged to observe them on the same basis as the transferor employer.
There is, however, some disagreement between the parties on what constitutes conditions of employment for the purpose of the transfer. Moreover, there is no single comprehensive written agreement between the parties encompassing all the conditions of employment of the affected staff.
In the Court’s view there is a clear need to consolidate all existing agreements into a single document so as to provide clarity on what is or is not transferring.
The Court recommends that the parties should engage in an intensive process for the purpose of producing such a comprehensive agreement setting down in a single document all existing agreed conditions which should transfer for the purpose of the statutory Regulations.
This process should continue up to but not beyond a period of two weeks from the date of this recommendation. The parties should also give consideration to the Union’s suggestion that this agreement be registered with the Court under s. 27 of the Industrial Relations Act 1946.
Any issues not agreed by the parties by Friday 20th November 2009 should be referred back to the Court for a binding decision. In that regard, by their acceptance of this recommendation the parties should be taken to have agreed in advance to accept the further recommendation on the Court on outstanding issues.
In the event of final agreement not being reached by the date specified the parties should report to the Court in writing on that date and the Court will hear the parties not later than 24th November 2009.
The Court further recommends that the Company should agree to defer the transfer pending the completion of the process within the time frame recommended above.
Compensation for loss of benefits
The Court recommends that each employee transferring to the transferee employer be paid compensation in the amount of €5, 000, in full and final settlement, in respect of loss of: -
•Privilege Card – Staff Discounts
•S.A.Y.E. Scheme
Pension
The Company (Tesco) informed the Court that the transferee employer is prepared to consider the recommendations of the Court in so far as they may impinge on the future employment conditions of the transferring employees. This was subsequently confirmed by the transferee. In that context the Court recommends that the current pension contributions payable by the Company be regarded as a conditions of employment which will transfer under the statutory regulations
Loss of Earnings arising from Changes in Work Practice
The Court notes that the Union are claiming compensation for possible loss in earnings arising from anticipated changes in work organisation. The Court recommends that this matter be dealt with if and when it arises.
This Recommendation is issued on the understanding that the dispute to which it relates will be resolved solely by the implementation of the terms recommended by the Court. It follows that the Union, its members and the Company, by accepting this recommendation, are committed to refrain from engaging in any form of industrial or coercive action or activity in respect of any of the matters forming the subject matter of the referral to the Court, where the other party is acting in accordance with the Recommendation.
Signed on behalf of the Labour Court
Kevin Duffy
10th November, 2009______________________
MG.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.