FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer's Decision No. ADJ-00001984
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 11th November 2016 the Adjudication Officer issued the following Recommendation:-
- In the event that the national agreement mentioned throughout the hearings addresses Sunday working in a systematic way, I recommend that the parties engage under that umbrella. In the event that it is silent on Sunday working, I recommend that the complainant roster for Sunday working on the following basis:
From April 2017 1:4
From April 2018 1:3
A Labour Court hearing took place on the 22nd March, 2017.
WORKER’S ARGUMENTS:
3. 1. The Claimant commenced employment with the Company in 2003 and has never worked a Sunday or a Public Holiday.
2. If the Claimant is obliged to work Sundays not having done so throughout her 14 year career, the effect would be very profound on her.
3. If the Claimant was rostered on the same Sunday as her husband they would have no access to childcare facilities and in any case the worker says that she would not be able to afford such facilities.
EMPLOYER’S ARGUMENTS:
4. 1. The company is simply asking the claimant to work her rostered hours in line with her signed contract of employment and the express terms of collective agreements negotiated with her union.
2.Thecompany has made a number of efforts to accommodate the claimant's work life balance but the claimant has been unwilling to consider any changes to her existing roster pattern. This is not in line with the company's business needs and puts unfair pressure on the claimant's colleagues.
3. Sunday working is a critical aspect of the Respondent's business and a significant proportion of the store's trading is at weekends. The company must be able to roster staff flexibly to respond to changing market conditions in accordance with the terms of individual and collective agreements.
DECISION:
This is an appeal by the Union on behalf of Ms Lorraine Melia against an Adjudication Officer’s Recommendation. Ms Melia sought to retain her work pattern and challenged her employer, Tesco Ireland, against moving her from a three day week to a five day week. The Adjudication Officer in her Recommendation recorded a compromise arrangement reached on 29thJuly 2016 between the parties and made a decision on the outstanding matter of Sunday working. She recommended acceptance of the compromise arrangement and the Claimant should be rostered for Sunday working on the following basis:-
From April 2017: 1 Sunday in every 4 Sundays
From April 2018: 1 Sunday in every 3 Sundays
The compromise arrangement entailed the following:-
The Claimant’s roster to include:-
- •2 Public Holidays per annum
•Requirement for the Claimant to work 4 over 6 days with an additional fourth shift restricted to between 9.30am – 2.00pm (during Thursday, Friday, Monday, Tuesday or Wednesday). Consideration to be given to School drop off times and the Claimant’s husband’s roster.
•Continuation of one late night shift per month.
The Claimant appealed the Recommendation, firstly as she was not satisfied that the recording of the compromise arrangement was accurate and secondly, as she was not willing to work on Sundays due to the detrimental effect on her home and family life. She said that she had not been required to work on Sundays throughout her 14 year career with the Company. Secondly, the Adjudication Officer failed to record that her roster would revert to 3 days per week during school holidays additional shift.
The employer stated that it expected the Claimant to work her contractual hours in line with her current express contractual liability. The Claimant’s contract provided for working hours of between 18 and 25 hours per week, as scheduled by the store, working 5 working days over 7 days. It specifically stated the following:-
- Sundays: You will have a liability as part of your roster to work 3 Sundays in 4.
Public Holidays: You will have a liability as part of your roster to work on Public Holidays and on Good Friday.
The employer recognised that a collective agreement on banded hours reached between Tesco and Mandate in 2006 recognised that certain staff may have locally agreed arrangements to work a three day week. However, such an arrangement did not apply to the Claimant. Staff with such an arrangement had it recorded in their contracts of employment. The Claimant was contracted to and had a liability to work 5 over 7 days, including a liability to work Sundays and public holidays.
In May 2006 the Claimant sought to restructure her hours from 5 hours a day over a 5 day period to 3 full days a week, on a rotational basis. In order to accommodate her work life balance, Management agreed, however, it stated that this did not alter her liability to work over 7 days and on public holidays. It merely allowed her to work 3 days per week rather than 5 days per week, her roster patterns changed from 5 x 5 hour days to 3 x 8 hour days, rostered over Monday to Saturday.
On 31stMay 2007, the Claimant signed a new contract where her weekly hours moved from 25 to 30 hours and provided as follows:-
Days and Hours of Work:
- 5 over 7 (Sunday to Saturday included)
- Staff employed post 12thJanuary 1996 have a contractual liability to work public holidays.
Towards the end of 2015, as the store was experiencing trading difficulties, the company took a number of steps to address the problem including voluntary redundancies and requiring those who had historically not been rostered to work on Sundays and public holidays to do so from then on.
The employer stated that management made efforts to seek more flexibility from the Claimant, however, she refused to consider any changes to her existing roster pattern due to her family circumstances.
The employer stated that while the compromise arrangement referred to above coupled with the Recommendation on Sunday working did not reflect the Claimant’s contract, it was prepared to accept it and move forward in a spirit of mutual co-operation.
At the hearing before the Court the Company made an offer to try and accommodate the Claimant’s work life balance needs while reconciling the needs of the business. This was confirmed in writing to the Court by letter dated 24th March 2017. The Company offered the following on an interim basis, subject to the right to review the arrangements in light of business needs:-
Sunday Working
- The Claimant to work 1 Sunday in 4.
Public Holidays
- The Company is prepared to avoid rostering the Claimant for the same public holiday as her husband unless both parties expressly request them to be rostered for opposite shifts on the same public holiday.
Days and Hours of Work:
- The Claimant will be rostered for an additional shift of 9.30am to 2.00pm (during Thursday, Friday, Monday, Tuesday or Wednesday) with consideration to be given for school drop off times and her husband's roster. This additional shift requirement during school holidays but this cannot be guaranteed.
Continuation of one late night shift per month.
The Court is of the view that the Company’s offer as outlined in the letter dated 24 March 2017 is reasonable and should be accepted by the Claimant. The Adjudication Officer’s recommendation is varied accordingly. The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th April, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.