FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TIPPERARY COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY UNITE THE UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal Of Adjudication Officer Decision No: Ir-151490-ir-14
BACKGROUND:
2. The employee appealed the Adjudication Officer’s Recommendation to the Labour Court on the 3rd March 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 7th June 2017.
UNION'S ARGUMENTS:
The Union argued that as the Worker was originally an employee of Clonmel Borough Council, prior to it being subsumed by Tipperary Council, he was entitled to work under the terms and conditions set out in his original contract of employment. A change from a one hour to a half hour lunch break and a request to work outside the previously designated Clonmel Borough Council area were two such changes the Union cited as changes to the Worker's terms and conditions. Furthermore, the Union argued that the Council has effectively caused any disruption with regard to supervisory issues or integration of crews by imposing the half hour lunch break on employees.
COMPANY'S ARGUMENTS:
The Council argued that they require all staff to operate on the same cycle as their colleagues in order to assist with flexibility, efficiency and standardisation across all crews in the district. The Council cited the Public Service Agreement stating that there should be a contribution on the part of employees regarding flexibility and change in return for provisions regarding job security and subsequent pay restoration. The Council also informed the Court that they estimate the current loss in productivity to equate to approximately €30,000 per annum or one full-time position.
DECISION:
This matter comes before the Court under section 13(9) of the Industrial Relations Act 1969. The Court has given careful consideration to the extensive written and oral submissions of both sides in this dispute.
The Court finds that the issue before the Court must be decided in the context of the collective agreements in place between the parties.
At present the Council is seeking to reduce the duration of the claimant's meal break from 60 minutes to 30 minutes which would have the effect of bringing forward his finishing time by 30 minutes each day also.
At present the claimant's contract of employment makes provision for a 60 minute lunch break. This arrangement is subject to alteration through collective agreements entered into between the claimant's trade union and the Council and not otherwise. On the evidence before the Court no such collective agreement has been concluded between the relevant parties.
The Council asserts that the Union has committed to entering such a collective agreement in accordance with the terms of the relevant Public Service Agreements. The Union disputes this.The Agreements the Council seeks to rely on make provision for binding arbitration where parties cannot agree on matters that come within its scope. However it has not availed of that provision in the Agreement and accordingly cannot seek to proceed as though it had done so. The essence of such a provision is that neither side can ignore it with impunity and subsequently assert its right to rely on its disputed interpretation of the Agreement as the Council seeks to do in this case. It must first test its interpretation through the relevant procedures and only proceed in accordance with the outcome of that process.
The Court equally takes the view that the Union must engage with the Council on the changes it Should it fail to reach agreement on the proposed change to both the lunch break and the daily finishing time it must facilitate the referral of the matter through the procedures set out in the Public Service Agreement and abide by their outcome.Accordingly the Court finds that the question raised in this case is before it prematurely. The Court decides that the appropriate course of action is for the parties to engage on the Council's proposal to introduce uniform lunch and finish times for this category of staff and to exhaust the procedures set out in the Public Service Agreement on any disputed matters in that regard. Thereafter the terms of that agreement should apply equally to the Claimant in this case who shall be obliged to comply with the terms of that collective agreement in accordance with the provisions of his contract of employment.
In the interim the Council should remove all threats of disciplinary action against the claimant while this process is brought to finality.
The Court so decides.
Signed on behalf of the Labour Court
JD______________________
03 July 2017Brendan Hayes
Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Deegan, Court Secretary.