FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : STOBART IRELAND LIMITED - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Various issues.
BACKGROUND:
2. This dispute, which concerns payment for Public Holidays and of a Christmas Bonus, arises from the Workers transfer from Tesco Ireland in November 2009. The Union referred this case to the Labour Court on 17th August, 2011, in accordance with Section 20(1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on 24th November, 2011.
UNION'S ARGUMENTS:
3. 1. At the time of the transfer of the Workers into this Company, a comprehensive collective agreement was entered into.
2. The Company is refusing to honour this collective agreement.
3.The Workers should be retrospectively paid the Christmas Bonus and the Public Holiday.
COMPANY'S ARGUMENTS:
4. 1. The Company has at all times upheld the collective agreement.
2. The collective agreement clearly differentiates between Workers employed before and after 2007.
3.The Company is entitled to apply the collective agreement in full.
RECOMMENDATION:
The Court notes the content of the collective agreement to which the Company is now a party pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. That Agreement commits the parties to observing normal procedure in seeking to resolve industrial relations disputes. That plainly involves engagement at local level on the issues involved and if they remain unresolved their referral to the LRC and ultimately to the Court by way of a joint referral.
In these circumstances the Court finds it extraordinary that, despite requests from the Union, the issues now before the Court have not been the subject of any discussion between the parties prior to their referral to the Court. The Court would urge the parties, in their future dealings, to observe strictly the spirit and intent of the Collective Agreement by which they are bound.
With regard to the substance of the matter before it the Court recommends as follows:-
Public HolidaysThose entitled to time-plus-one-half should have their entitlement calculated by reference to actual hours worked on the public holiday in question
If it is established as a fact that those drivers formally employed by DHL Excel Supply Chain are covered by the 2003 Regulation, they should be treated as pre 2007 employees.
Christmas BonusThe Court is satisfied that the provision upon which reliance is placed by the Company in introducing an attendance requirement for the bonus is an enabling provision. Effect to the provision should be given by agreement between the parties or in the absence of agreement by the utilisation of the dispute resolution procedures of the Collective Agreement.
The Court recommends that the practice in relation to this bonus existing at the time of transfer, namely that it is paid unconditionally, be restored and that it be paid to those from whom it was withheld in 2010.
The Court further recommends that the parties then enter into negotiation within the procedures of the Collective Agreement on giving effect to the terms of that clause in the Agreement. For the avoidance of doubt the Court recommends that the matter be raised in the first instance in local negotiations and that if agreement is not reached it be referred to the LRC for conciliation. If agreement is not reached at conciliation the matter should then be referred to the pursuant to section 26(1) of the Industrial Relations Act 1990.
Signed on behalf of the Labour Court
Kevin Duffy
28th November, 2011______________________
JMcCChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.