FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : PFIZER IRELAND PHARMACEUTICALS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - TECHNICAL, ENGINEERING AND ELECTRICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Removal of certain conditions associated with the move from OP-4-6 to OP1-3, loss of earnings
BACKGROUND:
2. The issue before the Court concerns the agreed move of 16 craft workers from Pfizer's location in Inchera to its site in Little Island, Co. Cork. The sites are adjacent but operate separately. In 2008 discussions began between the parties on the transfer of the 16 workers concerned to the Little Island site as the Inchera site was to close. In March, 2010 the 16 workers commenced employment in Little Island. The Union's claim is for the retention of the split week rota conditions as laid out in the Company/Union Agreement, which applies over all Pfizer sites. The Company contends that their is no split shift arrangement in Little Island and that there is no need for one. The Union is also seeking the payment of compensation for the unilateral withdrawal of certain conditions associated with the Split Week Rota, the payment of compensation for loss of 4 shift payment conditions and compensation for loss of contractual overtime payments associated with the Contractors Agreement. The Company's position is that it was made clear to the Union that the transition of the workers must be achieved without increasing costs and that it would be done under agreed operational practices.
The dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 10th December, 2010 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 3rd February, 2010.
UNION'S ARGUMENTS:
3. 1 The Split Week Working arrangement formed part of the Pfizer Ireland Pharmaceuticals Agreement. The Workers concerned are covered by the terms and conditions of this Agreement in regards to the Split Week Rota as are all other Pfizer Ireland Craftpersons.
2 The Company's contention that no Split Week Rota applied in Little Island is incorrect as can be seen from the history of the integration of both the Inchera and Little Island Plant in 2005/2006
3 The financial loss to the workers concerned in any reduction in the Split Week Rota and conditions is significant
COMPANY'S ARGUMENTS:
4. 1 There is no need for a Split Week Rota arrangement to support the operational and business requirements of the Little Island site.
2 The Company acknowledges the financial loss to some individuals and has proposed reasonable resolutions for these colleagues.
3 Craft workers who opted to move to the Little Island site rather than take the redundancy package were informed prior to making the decision that they would be paid in accordance with Little Island working arrangements.
RECOMMENDATION:
The case before the Court on behalf of 16 craftspersons concerns a dispute between the parties in relation to the conditions of employment associated with the Company’s move of location from OPS4-6 in Inchera to OPS1-3 in Little Island, Co. Cork. This move took place following the closure of the Inchera plant on 31st March 2010.
The Union submitted the following claims before the Court: -
(i) On behalf of 16 craftspersons, retention of a split week rota arrangement as a fallback arrangement when there is no requirement for four-shift working.(ii) On behalf of 6 craftspersons, payment of compensation for loss of earnings when they were required to move from split week rota to day working and on behalf of 2 craftspersons, payment of compensation for the loss of a four-shift premium when they were moved to day working.
(iii) On behalf of 16 craftspersons, payment of compensation for loss of contractual overtime payments associated with the Contractors’ Agreement.
(i) Retention of a Split Week Rota Arrangement
The Union seeks the retention of the split week rota arrangement, which attracts a premium of T+1/6, for the 16 craftspersons transferring from OPS4-6 to OPS1-3. According to the Company, the working patterns and arrangements in OPS1-3 were different to those which operated in OPS4-6. It submitted that split week rota never operated in Little Island and therefore the fall-back arrangement in the event of no 4-shift working being available in OPS1-3 is to move to day working. It stated that it is not operationally feasible to operate a split week rota in Little Island and it would add significant financial costs and operational difficulties to the site, which is facing serious commercial challenges.
The Union’s Case
The Union submitted to the Court that there was justification for the retention of the split week rota arrangement. When the Company took over the Inchera plant in November 2004 the business needs at the time necessitated an agreement on a number of possible working arrangement for craftspersons, including four shift working, split week rota working and day working. These working arrangements were agreed under the Inchera (Pfizer Ireland Pharmaceuticals) Agreement.
Furthermore, the Union submitted that in April 2005 there was a brief period when the Inchera plant became part of an integrated site with the Little Island site, known as the Little Island A.P.I. which operated as one unit under one management team. Around this time Inchera craftspersons worked on day working training sessions in the Little Island plant and they continued to be paid their split week rota premium. It was submitted that his gave rise to an understanding that the craftspersons were entitled to believe that they would similarly retain the split week rota premium when they were redeployed to OPS1-3 in Little Island in March 2010.
The Union also held that in 2005 when the Company, for the business needs at the time, eliminated day working and compelled them to work the split week rota arrangement as the only alternative to four-shift working, this reinforced their belief that they would continue to retain their split week rota premium as a fall back to four-shift working.
The Union also referenced a transitional arrangements agreed in February 2009 and an LRC November 2008 agreement whereby it provided for the retention of the split week rota premium while loss of earnings compensation was resolved either at local level or through a third party.
The Company’s Case
The Company told the Court that by letter dated 27th January 2009 to the TEEU, it clarified that the redeployment of craftspersons from OPS4-6 to OPS1-3 must not involve additional cost; that the Union fully understood the operational practices in OPS1-3 and that should any OPS4-6 craftsperson move to OPS1-3 that the latter’s operational practices would apply to them. The letter stated that there was no split week rota working in OPS1-3 and that the terms and conditions that would apply to the day maintenance craftspersons would be based on day rates.
The Company held that this letter was followed up with details of the Transition Arrangements in February 2009. After extensive Conciliation at the LRC on the closure of Inchera, an agreement was reached between the Company and the Union on the transitional arrangements for the move and the secondment of seven craftspersons to OPS1-3 from 9th March 2009 to work on days as per the Operational Practices agreement while they retained their then current shift premium; any claim for loss of earnings was to be resolved as per the LRC agreement. The arrangement was agreed at the LRC while negotiations were ongoing, and was agreed in order to facilitate production, to familiarise themselves with the process in OPS1-3, and to facilitate the orderly closure of OPS4-6. The agreement also provided an alternative option to redundancy for the craftspersons involved and provided for displacement of contract craftspersons in OPS1-3 by the transferred craftspersons.
At the end of January 2010 the Company stated that it wrote a letter to each of the individual craftspersons in OPS4-6 to ascertain whether they wished to continue in employment with the Company or avail of redundancy. Eight of the named craftspersons were offered craft positions on a continuous four-shift rota with a premium payment of one-third of basic; and eight of the named craftspersons were offered day craft positions with no premium payment.
The letters stated that the offer along with the existing TEEU agreement and the operational practices constituted the full terms and conditions of employment for those who decided to accept the offer. It went on to clarify that the operational practices document should be viewed as an addendum to the existing TEEU agreement and where relevant it superseded the existing TEEU agreement. The letter also proceeded to state that claims for loss of earnings associated with the displacement would be resolved through local discussions and if necessary by joint referral to a third party. Each of the sixteen craftspersons signed the letters accepting the offers.
The Court’s Findings
The Court notes that the existing TEEU agreement referred to is the 2004 agreement, this states under the heading:
- Hours of Work:
Dayworkers: the normal hours of work shall be from 7.30am to 4.00pm Monday to Thursday inclusive and 7.30am to 3.00pm on Fridays….
Shiftworkers: when required by the Company, the Colleagues shall work a two-shift, three-shift or four-shift system…
Premium Payments For Shift Work:
Craft on Continuous Four-shift Rota shall be paid premium on one-third of basic rate for all hours worker as part of their standard shift week.
Craft on Two-Shift Rota and on Split week rota shall be paid a premium of one-sixth of basic rate for all hours worked as part of the standard shift week.
This agreement provided for “step down” arrangements in the event of the Company requiring a shiftworker to transfer from one shift rota to another shift rota, carrying a lower premium.
The Operation Agreement referred to dated 8th January 2009 entitled“Pfizer Little Island API Plant, OPS1-3”,outlines the purpose of the document as describing “the current practices which form part of the overall operation of the Maintenance Department in Little Island OPS1-3”.
It states:
- Shift Patterns:
LIOPS1-3 operate a 4-cycle shift and day maintenance team to support a 24/7 production environment based on current business needs.
Having considered the submissions of both sides the Court, on the basis of following points, concludes that there is no basis for the retention of the split week rota premium to the craftspersons who no longer work such a shift and the Court accepts the Company’s assertion that there is no requirement for the reintroduction of such a shift in OPS1-3. :
�by agreement dated 12th July 2004 it was accepted that day craftspersons in Inchera would operate on a split week rota and that that position remained until the closure of the Inchera plant in March 2010.
�split week rota working never operated in the Little Island plant, and while craftspersons undertook some training in the Little Island plant on days and continued to receive their split week rota premium, this does not constitute a precedent which must be followed.
�the TEEU were informed from 27th January 2009 that the redeployment of craftspersons from OPS4-6 to OPS1-3 must not involve additional cost and that the operational practices in OPS1-3 would apply to them, i.e. that there was no split week rota working in OPS1-3 and that the terms and conditions that would apply to the day maintenance craftspersons would be based on day rates.
�the transitional arrangements agreed in February 2009 provided for an interim continuation of split shift rota premium payments for seven craftspersons seconded on a temporary basis to OPS1-3 prior to their eventual redeployment to that location.
�the letters dated 27th January 2010 to each of the individual craftspersons clarified whether they were being redeployed to a shift or day position in OPS1-3 and that the terms which would apply to their redeployment were those which applied in OPS1 –3.
However, the Court is also of the view that, in terms of individual contracts with each of the craftspersons involved, while it was made very clear that there would be no split week rota working in OPS1-3, the letter of 27th January 2010 lacked clarity in that it did not spell out that the fact that the split shift rota premium would no longer be paid in the event of a craftperson reverting from four-shift working to day working. The potential loss of one-sixth premium had significant implications for the craftspersons involved, particularly in terms of their pension entitlements.
Therefore the Court recommends that the craftspersons should co-operate fully in accordance with the LRC agreement of November 2008 with the new operational requirements in OPS1-3 and the split shift rota premium should cease with effect from 1st March 2011.
(ii) payment of compensation for withdrawal of certain conditions associated with the split week rota and for loss of a four-shift premium
The Union seeks compensation for loss of earnings for 2 craftspersons who moved from four-shift working to day working and for 6 craftspersons who moved from split week rota working to day working. The Company acknowledged the potential losses due to the move and offered to compensate the 2 craftspersons with a payment of once the annual loss less those payment already made under the “step-down” arrangements. The Union sought four times the annual loss.
The Court recommends that the craftspersons should be compensated by the payment of two years’ the actual loss of shift premia and this payment should be paid in two moieties. The first moiety should be paid on 1st March 2011 and the second moiety on 1st March 2012. For the avoidance of any doubt this compensation payment should not be offset by the “step down” payments already made or by the interim restoration of the split week rota premium in January 2011.
Furthermore, the Court recommends that in the event of any of the Claimants being made redundant during the phase-down period, their severance payments should be notionally calculated to include the shift premium.
(iii) payment of compensation for loss of contractual overtime payments
The Union seeks compensation for the loss of 20 hours’ regular and rostered contractual overtime arrangement which were available in OPS4-6 and not available OPS1-3. The Company made an offer to pay a lump sum based on a calculation of the average overtime worked and taking account of the fact that there will be some overtime available in OPS1-3.
Having considered the submissions of both sides the Court recommends that twice the annual loss of overtime should be paid in one lump sum on 1st March 2011. The lump sum should be calculated based on each individual craftsperson’s overtime hours worked in the previous 12 months prior to the termination of such overtime working in OPS 4-6.
Conclusion
The Court recommends that this Recommendation should put to a ballot as a composite package in full and final settlement of all issues referred to the Court.
Signed on behalf of the Labour Court
Caroline Jenkinson
24th February, 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.