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. Hearing arising from Labour Court Recommendation LCR19677.
BACKGROUND:
2. In October 2009 the Company announced its intention to transfer roles in the transport department, including drivers to Stobart (Ireland) Limited. The Union raised a number of issues in that regard and a Labour Court hearing took place on the 9th November 2009.
The Court in its recommendation of the 10th November 2009 stated that in the event of final agreement not being reached by 20th November 2009 the parties should report to the Court and the Court would convene a further hearing.
Both parties contacted the Court with regard to outstanding issues on which agreement was not reached and seeking clarification on a number of other issues.
A Labour Court hearing took place on the 25th November, 2009
RECOMMENDATION:
This dispute concerns the terms on which drivers employed by Tesco Ireland will transfer to Stobart Ireland Ltd, under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The matters in dispute were addressed in Recommendation LCR19677. Here the Court recommended as follows: -
- 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.
While substantial progress was made in direct discussions between the parties, final agreement was not reached. In accordance with LCR19677 those matter were referred back to the Court for a binding decision.
Having considered the submissions of the parties the Court recommends that the Draft Agreement tabled by the Company be accepted subject to the following modifications: -
Christmas Bonus
The Agreement should provide that those who did not benefit from the share bonus scheme in 2009 should receive a Christmas bonus in respect of 2009 in the terms provided for in the agreement of 2002.
For 2010 and subsequent years the terms of the 2002 agreement should apply to all staff covered by that agreement.
Mobility
The wording contained in the “Tesco Drivers May 2007” agreement, dated 5th May 2007, under the heading“Drivers working out of the Tesco Donabate distribution centre as their primary site” should be incorporated in full in the Agreement. This should then be followed by the wording contained in the agreement of 27th October 2005, as follows: -
- “The Company reserves the right to review and change a drivers primary site in line with business requirements. Drivers will receive 4 weeks notice of this. Drivers may at any stage apply for a change in location of work and we [ the Company] reserve the right to review that request in light of business requirements at that time”
Sick pay scheme
The Agreement should provide that the first three days of illness will not attract payment and that the deduction will be calculated by reference to 11.25 hours pay per day. On return to work, after four or more weeks of illness, a rebate of the deduction will be made, again on the basis of 11.25 hours pay per day.
Shunters
The following words, proposed by the Company, should be deleted from the Agreement: -
- “All “shunters” are employed on the basis of a driver contract and can therefore be called upon to carry out driving duties on the road”
Step Down
The Agreement should provide that any local agreement on step down arrangements should continue to apply to those to whom the local agreement currently applies.
51% Clause
It is noted that in its original submission to the Court the Union acknowledged that the terms of the 51% Clause in the October 2007 agreement cannot transfer. The Court is satisfied that this is a correct acknowledgement of the situation from a practical prospective. Accordingly this clause should not be included in the Agreement.
Swap days
The terms of the local agreement, the terms of which are set out in the document dated 27th June 2008, should be incorporated in the Agreement.
Registration
The Court notes that the Company are not prepared to be party to a joint application to register the Agreement under Section 27 of the Industrial Relations Act 1946. The Court further notes the Company’s acknowledgement, with the concurrence of the transferee, that the Agreement will apply in law to the transferee pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. On that basis the Company contend that registration is unnecessary since the Agreement will have legal effect, following the transfer, by virtue of the Regulations.
The Union told the Court that it believes that registration is necessary so as to assuage concerns amongst it members concerning the status of the Agreement and its future applicability as between it and the transferee.
The Court believes that the position of both parties can be adequately accommodated by including an introductory clause in the Agreement in the following terms: -
- “This Agreement is made between the parties for the purpose of facilitating the transfer of part of Tesco Ireland’s business to Stobart Ireland Ltd., pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, S.I 131 of 2003 (hereafter the Regulations). The purpose of this Agreement is to consolidate all existing collective agreements in place between Tesco Ireland and SIPTU, representing employees of Tesco Ireland affected by the transfer, at the date of the said transfer.
Regulation 4(2) of the Regulations provides as follows: -- “Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”
- “The Court may, at any time, on the application of the parties to an agreement between an employer or a trade union of employers and a worker or a trade union of workers relating to the pay or conditions of employment of any person to whom the agreement relates give its decision as to the interpretation of the agreement or its application to a particular person.”
Clarification of Recommendation LCR19677- Loss of benefits
The Court intended that the sum of €5,000 recommended by way of compensation for loss of the Tesco privilege card and the SAYE scheme should apply in respect of loss of benefits, actual or potential. Accordingly the full amount should be paid to each employee.
Signed on behalf of the Labour Court
Kevin Duffy
26th November 2009______________________
MG.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.