FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. An appeal of Rights Commissioner's Recommendation r-152599-ir-15/JW.
BACKGROUND:
2. In 2006 the Company and the Union agreed a Collective Agreement which set out changes to the terms and conditions for all employees in the general sales assistant role. The Agreement states: “It is recognised that there may be certain staff who by local agreement may have specific local arrangements i.e. a 3 day week. In these cases the number of weekly hours the staff member works will be assimilated onto the appropriate band and they will retain their working pattern and number of hours unless otherwise agreed”
- The Union said the Claimant has worked the same hours each week since 2003 and had a local agreement in place to continue working those hours.
The Employer said the Claimant signed a new contract in 2007 and while it accepts he had an established working pattern of 8-5 Monday to Friday, this does not prevent the Company from changing his working hours in line with the flexible hours’ provision of five days over seven in his contract of employment.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 15th July 2015 the Rights Commissioner issued the following Recommendation:-
- I note that the Claimant was not required to work flexible hours from 2003 until July 2014. This begs the question, why was the Claimant not required to work flexible hours when he allegedly signed a contract to do so in June 2007.
Since the Claimant has worked from 8am to 5pm from 2003 to 2014 this work practice could be considered to have become “a custom and practice”.
I recommend that the Claimant be allowed to work from 8am – 5pm from Monday to Friday until such time as an agreement is reached between the parties to change the “custom and practice” established over time.
- I note that the Claimant was not required to work flexible hours from 2003 until July 2014. This begs the question, why was the Claimant not required to work flexible hours when he allegedly signed a contract to do so in June 2007.
The Company appealed the Rights Commissioner's Recommendation to the Labour Court on the 6th August 2015 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 30th September 2015.
UNION’S ARGUMENTS:
3. 1. The Claimant commenced employment in 2003 and signed a contract of employment with the hours of work 8am to 5pm.
2. The Claimant signed a new contract in 2007 and continued to work his original hours until July 2014 when the Company decided he was fully flexible.
3. The Claimant has worked for 11 years from 8am to 5pm and this is a clear established working pattern within the meaning of the 2006 Collective Agreement.
EMPLOYER’S ARGUMENTS:
4. 1. The Claimant, along with circa 200 colleagues in the Clearwater store, is required work under fully flexible 5/7 contracts of employment arising from a 2006 Collective Agreement between the Company and the Union.
2. In 2007 the claimant was issued with a new contract of employment setting out his hours as 5/7 as per the 2006 Collective Agreement.
3. As the Company operates in the highly competitive grocery market, it must continually adapt to change. As such, the Company requires all employees to be flexible in their work in meeting business needs and will always endeavour to be reasonable when engaging with the Workers and Union.
DECISION:
This is an appeal by the Employer against a Rights Commissioner’s Recommendation which upheld the Complainant’s complaint concerning the alteration of his working hours’ pattern.
A compromise agreement emerged at the hearing whereby both sides agreed that the Claimant would be rostered to work five days over seven days per week and his working hours would be as follows:
- •8.00 a.m. to 5.00 p.m. for two days per week;
•9.00 a.m. to 6.00 p.m. for two days per week; and
•12.00 noon to 9.00 p.m. for one day (not at weekends).
The Court recommends that the agreement reached by the parties should be confirmed in writing and signed by both parties.
The Rights Commissioner’s Recommendation is set aside.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
23rd October, 2015______________________
CRDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.