FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : MUSGRAVE RETAIL PARTNERS LIMITED - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Rates for Christmas Period
BACKGROUND:
2. The dispute concerns the method of payment for drivers recruited since 2002 who are required by the Company to work on 24th, 27th and 28th December. The Union contends that they should be paid the same as a group of 26 workers who had their pay red-circled in a 2002 Agreement. These workers were paid on an overtime rate. In 2005 the Union claims that a number of relief drivers were made permanent and were told by the Company that the terms of the 2002 Agreement would apply to them. The Union contends that this should include the red-circle arrangement that applied to the 26 workers. The Company's case is that since the 2002 Agreement all workers who are required to work over the Christmas period are paid at the basic rate.
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 6th April, 2009, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 4th November, 2009, in Cork.
UNION'S ARGUMENTS:
3. 1. Company documentation from 2005 states:"any individuals who were fulfilling appointed positions will do so in accordance with the terms of the 2002 agreement".Consequently the premium rates that applied in that agreement should apply to drivers appointed in 2005.
COMPANY'S ARGUMENTS:
4. 1. The 2002 Agreement is a specific agreement and the 26 drivers involved had their terms and conditions changed as a result of it being implemented. It expressly red-circled the terms for the 26 workers. If the claim were conceded it would have serious cost-increasing consequences and would have repercussions across the whole Company.
RECOMMENDATION:
While there may be some ambiguity around the wording of the document issued by the company in 2005, the meaning of the 2002 Agreement is perfectly clear. It confines the premium rates at issue to 26 red-circled drivers.
In interpreting an industrial relations agreement the approach of the Court is to objectively ascertain the intentions of the parties by reference to the language used in the document and the surrounding circumstances in which the agreement was concluded. The agreement is then construed so as to give effect to that intention
The Court cannot accept that there is any objective basis on which it could be concluded that in issuing the document of 2005 the Company intended to alter or offset the clear provision of the 2002 agreement so as to extend the red circle arrangement to workers not originally comprehended by that agreement.
Accordingly, the Court does not recommend concession of the claim
Signed on behalf of the Labour Court
Kevin Duffy
17th November, 2009______________________
CONChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.