FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : TESCO IRELAND - AND - MANDATE DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Compensation for non-payment of a break to night crew working at the employer's Tallaght store.
BACKGROUND:
2. The dispute could not be resolved at local level and was the subject of a conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 2 February 2016, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 4 March 2016.
UNION'S ARGUMENTS:
3. 1.The Workers did not receive their proper entitlement of a 15 minute paid break as per the 2003 Night Crew agreement.
2.The issue was brought to the attention of management in Jan 2014 but the Workers did not receive their paid breaks until September 2014, which was nine to ten months after it was brought to management's attention.
3.The same issue was resolved at four other of the Respondent's stores where the Respondent agreed to pay a 15 month retrospective compensatory payment. However no agreement was reached at the Tallaght store and the Union is seeking a total of 24 months compensation for the unnecessary delay in addressing the issue. The Workers at the Tallaght store have not been treated in a fair and equitable manner and are seeking compensation to take into account the unnecessary delay by management in addressing the issue.
RESPONDENT'S ARGUMENTS:
4. 1.The Respondent accepted in good faith that the Workers in question did not receive their 15 minute paid break.
2.The same issue was brought to the attention of the Respondent at the Clarehall store. An agreement was reached between the Respondent and the Union at that store, whereby the Respondent agreed to make a 15 month retrospective compensation payment to the affected Workers. The same issue also occurred at three other stores and the "Clarehall agreement" was accepted by the Workers in the stores in question.
3.The Respondent has made the same offer to the Workers at the Tallaght store but this has been rejected. If the Labour Court concede to the Union's claim for 24 months compensation, this would cause unfairness and industrial relations problems in the four stores where agreed compensation was accepted and paid by the Respondent.
RECOMMENDATION:
The Union is seeking compensation for its members employed as Night Crew Staff at the Respondent’s Tallaght store arising from the Respondent’s failure to provide the aforementioned staff a paid 15-minute break as stipulated in an agreement entered into by the Respondent, Mandate and SIPTU at a national level in 2003 (‘the Agreement’).
The breach of the Agreement in the Tallaght store came to light following the resolution of a similar dispute in the Respondent’s Clarehall store in January 2014. The latter dispute was resolved by an agreement between the Union and the Respondent the terms of which provided for a compensation payment equivalent to the monetary value of the breaks calculated over a 15-month period. This came to be referred to as the ‘Clarehall Proposal’. It was subsequently applied, in a slightly modified form, at the Union’s request, to staff in the Respondent’s Drogheda, Monaghan and Artane stores. The revised version of the Proposal provided that - rather than being based on an average payment - the relevant compensation payment due to each worker should be calculated individually based on his/her recorded attendance.
The Respondent submitted to the Court that it had attempted to address the issue of paid rest breaks in all its stores in March 2014 at which time it issued a written communication to all store managers. It appears, however, from correspondence dated on dates in April and May 2014 - copies of which were submitted to the Court - that the issue went unaddressed by management at the Tallaght Store for some months. It is agreed between the parties, in fact, that the Night Crew Staff in Tallaght did not begin to receive payment for their 15-minute break in accordance with the 2003 Agreement until September 2014.
The Court recommends that the terms of the revised ‘Clarehall Proposal’ be applied and accepted as part of the resolution of this dispute. In addition, having regard to the very particular circumstances that applied in relation to the affected workers at the Tallaght store in 2014 – i.e. local management’s delay until September 2014 in applying the terms of the communication issued by Head Office in March 2014 –the Court further recommends that the Respondent make an additional payment equivalent to 3 months’ financial loss for the failure to provide paid breaks, calculated in accordance with the revised ‘Clarehall Proposal’.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
8 March 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Michael Neville, Court Secretary.