FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ASTELLAS IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Credit For Previous Service In Respect Of Certain Benefits
BACKGROUND:
2. The issue before the Court concerns a claim by the Union on behalf of its members employed on temporary contracts at the Company and their entitlements. The Company employs a number of staff on temporary contracts of fixed duration. After a worker has been employed for six months they become entitled to certain benefits including sick pay. Contracts that follow immediatly on from one another are consider continuous service by the Company. If there is a break in service between the contracts the worker must work a further six months to regain their entitlement to Company benefits. The Union are seeking that previous service be reckonable towards entitlement to benefits where someone is re-engaged on a contract after a break in service from the Company. The Company's position is that when contracts come to an end there is no guarantee of further employment and that it would be unsustainable to operate under the Union's proposals.
The dispute was not 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 matter was referred to the Labour Court on 8th July, 2011 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 29th September 2011, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1 The Company are not adhering to the policies and procedures as set out in the Social Partnership Agreement. As a result of this the Union's members are being discriminated against by being treated less favourably than their permanent colleagues.
2 Workers employed on fixed term and specific purpose contracts have to recommence six months service each time their contracts are terminated and renewed before they are entitled to any Company benefits.
3 The Union are willing to discuss ways of addressing the application of temporary contracts with the Company. It is seeking some sense of security for the workers in relation to the application of the terms and conditions agreed in the Social Partnership Agreement 1999.
COMPANY'S ARGUMENTS:
4. 1 The established practice in the Company when filling temporary vacancies is to firstly advertise internally. If no suitable person is identified then previous temporary workers are invited to interview for the position. This is as agreed in the Company/Union Agreement. If a former worker returns to the company they are considered a new employee. All workers whether permanent or on contract are subject to six month waiting period for Company benefits
2 Continuity of service does not apply in this situation as all workers were dismissed on the completion of previous temporary contracts. All workers who are re-employed signed contracts accepting the terms and conditions.
3 If a permanent worker were to leave and subsequently be rehired the same waiting period of six months would apply before they would be entitled to Company benefits.
RECOMMENDATION:
The matter before the Court concerns the Union’s claim on behalf of employees employed on temporary contracts with the Company. Employees on temporary contracts build up entitlements to many of the Company’s benefits after they have completed six months service. Where contracts follow one another all service is considered as continuous. However, when the employment relationship is severed at the end of a temporary contract or a succession of follow-on contracts, continuity of employment is broken and if the employee is subsequently re-employed he/she is required to build up their entitlement again to the Company’s benefits.
The Union sought recognition of all the temporary employees' previous service with the Company, thereby ignoring any breaks in service for the purposes of entitlement to Company benefits.
The Court notes the agreement in place with the Union on call back arrangements for employees whose fixed term and/or specified contracts have been terminated. This agreement provides for such employees to be given the opportunity of an interview for any suitable positions which may become available.
Having considered the submissions of both parties the Court recommends that where an employee’s temporary service is severed and the employee is subsequently re-employed within a period of 12-months after the termination of the temporary contract, the employee should be assimilated back onto the Company’s benefits where he/she left off.
Furthermore, the Court recommends that in order to bring further clarity to the Company’s requirements for the future operation of temporary contracts the parties should have discussions within the context of Clause 10.3 of the “Social Partnership Agreement” agreed between the Company and the Union.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th October, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.