FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 7, INDUSTRIAL RELATIONS ACT, 1969 PARTIES : STOBART (IRELAND) LIMITED - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Hearing arising from LCR19689.
BACKGROUND:
2. The case was jointly referred to the Labour Court under Section 7 of the Industrial Relations Act 1969. The Labour Court hearing took place on the 27th October, 2010.
DECISION:
This dispute was referred to the Court pursuant to Section 7 of the Industrial Relations Act, 1969. This Section provides as follows:
- 7- 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.
The Court notes that the Transfer Document was clearly designed to set out the main terms and conditions of employment for drivers who transferred from Tesco Ireland Limited to Stobart (Ireland) Limited. It contained a clause on “Business Change” and a clause (carried forward from the 2006 Agreement) on “Work Flexibility”.
- “Business Change
It is agreed that following appropriate consultation on implementation of business changes and/or work practices, employees and representatives will co-operate with business change into the future. It is accepted that the rapid pace of change within our own business environment demands ongoing adaptation. Both the Company and Union are committed to full co-operation with normal ongoing change and the need for continued adaptation and flexibility to maintain and improve competitiveness and to increase productivity and employment. This may include new technology / initiatives in relation to operational standards, procedures, customer care, training, development (this list is not exhaustive) e.g. trailer units, cages/dollies, paperless picking, move to new other DC locations, cross functional working etc.
Where there is disagreement as to what constitutes normal ongoing change, after local discussions, the matter may be referred to the LRC and, if unresolved, it shall be referred to the Labour Court for adjudication.”
“Work Flexibility
Any employee for whom work covered by his/her job is not available, may be called upon, at management discretion, to undertake other work as is available, appropriate training and development will be provided.
All Warehouse staff members will be required to work in all areas of the warehouse and support departments within the site on any activity. This flexibility is in addition to working flexible shift patterns, and will be supported with appropriate training and development.
Having due regard for the Working Time Directive, Driving Staff Members will be expected to drive any vehicle or any combination of vehicle in the fleet, and to cover any route within Ireland and Northern Ireland, to carry loads in and out of any DC in the Tesco network in any given day, including 3rd party /contractor and supplier sites, to ensure the performance of the transport function is not adversely affected. Driving Staff Members may be asked to carry out other duties including Warehouse work as and when the business requires.”
“appropriate consultation on implementation of business changes and/or work practices….”.
If it comes within the latter then the Company can have an expectation of flexibility that the drivers will carry out driving duties anywhere within Ireland and Northern Ireland, which involve the Tesco network and its third party /contractor and supplier sites. They may also be expected to drive any vehicle and/or to carry out other duties as and when the business requires. Work outside of these limitations must involve consultation with the Union.
While the Court accepts that the “Work Flexibility” clause clearly allows for changes to be made to drivers' duties to cover new routes and to carry out other duties, however, it does not include driving duties involving non-Tesco-related work as defined by the Agreement.
The Agreement provided for the transfer of Tesco’s network distribution business to Stobart Ireland Ltd. The intention was that workers would transfer with their work on their existing terms and conditions of employment to the new employer, as per the Transfer of Undertakings Regulations, 2003.
It appears to the Court that what is being proposed now is to integrate these workers to a more significant level than was envisaged under the original transfer terms and accordingly involves a business change which requires adaptation and flexibility to maintain and improve competitiveness and to increase productivity and employment. Such an integration into the Stobart Ireland Ltd operation in Ireland would in the Court’s view amount to a move that would require further consultation with those staff impacted and their Union in accordance with existing Agreements.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th December, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.