LCR20617

SUBJECT:
1. Terms of collective agreement.



BACKGROUND:

2. This dispute concerns the Worker's claim that the Company failed to apply a collective agreement to her. The Worker referred this case to the Labour Court on 21st March, 2012, 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 3rd October, 2013.





UNION'S ARGUMENTS:

3. 1. The Worker has given decades of loyal and dedicated service to the Company.

2. The collective agreement clearly states that it applies to 'all staff'.

3.The Company advised the Worker in writing that she was exempt from the agreement when she sought to avail of its terms by applying for its voluntary redundancy package.



COMPANY'S ARGUMENTS:

4. 1. There was no unilateral change made to the Worker's hours as a result of the collective agreement.

2. Neither the Worker or her store were reprofiled according to the terms of the collective agreement.

• 3. The Company did not inform the Worker that she was covered by the terms of the collective agreement.
  

RECOMMENDATION:

The matter before the Court was brought under Section 20(1) of the Industrial Relations Act, 1969. The claim was made by the Union on behalf of a worker employed as a Qualified Assistant and concerns the employer’s failure to apply a collective agreement entitled “Work Life Balance Agreement” August 2010 (hereinafter referred to as “the Agreement”) to her.

The Agreement provides that in instances of “re-profiling” employees may be entitled to one of the options provided for within the Agreement, including the option of redundancy with an ex-gratia severance payment. Re-profiling occurs where there is an adjustment in overall store hours in line with footfall volumes and in such circumstances the Agreement applies in order to balance the needs of the business with staff requirements for certainty with regard to hours of work.

In November 2010 the Claimant was informed that due to new pharmacy regulations (regarding Qualified Assistants working without supervision) and the fact that trading hours were being reduced on Thursdays by two hours due to a reduction in footfall, her roster was being changed. The Claimant stated that at the time she was presented with a new roster outlining the required changes in accordance with the Agreement and the various options were outlined to her. She chose the redundancy option and was shortly afterwards informed that this option was not available to her as the Agreement did not apply to her grade. Therefore the roster changes never actually took place.

Management stated that the re-profiling principles of the Agreement did not apply to her role; the work life balance protocols did not arise in that case and furthermore that no redundancy situation existed.

When the issue could not be resolved between the parties an internal dispute committee, comprising of both management and trade union representatives, convened to hear the Claimant’s grievance. The outcome of that hearing was issued in June 2012. Mr. Jonathan Hogan, Mandate representative, concluded that in the specifics of the particular case, the Claimant should be offered the options contained in the Agreement, if and when the Company decided to vary her agreed pattern of hours in line with the Agreement.

The Court notes that at the hearing before the Court Management accepted that the Agreement applies to the Claimant in the event that a re-profiling of her duties is required by the business needs of the Company.

Having considered the position of both sides the Court is of the view that following the events of November 2010 there was a serious lack of communication surrounding the question of the application of the Agreement to the Claimant. It is clear that when the Claimant was furnished with a new roster she understood that the terms of the Agreement were being presented to her.

The Court is also clear that the Claimant was informed by Management that her role as Qualified Assistant was not covered by the terms of the Agreement and accordingly she could not avail of the options provided by the Agreement. However, Management confirmed for the Court that while she could potentially be covered by the terms of the Agreement in reality there was no re-profiling of her role at the time and none was envisaged.

The Court notes within the “Scope” terms of the Agreement it provides for an extension of the terms of the agreement in certain circumstances where the need arises, and accordingly recommends that Management should conduct a review of the business requirements in the Claimant’s circumstances to ascertain if they meet the re-profiling requirements of the Agreement. If such circumstances apply the Claimant should be offered the options available under section 6 “Staff Options” of the Agreement.

The Court so recommends.



Signed on behalf of the Labour Court



Caroline Jenkinson
7th October, 2013______________________
JMcCDeputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.