LCR22158

One of the matters before the Court has previously been the subject of two Labour Court hearings and one Labour Court recommendation which has not, because of a refusal by the employer to complete the procedure recommended by the Court, been implemented. All matters before the Court have been the subject of multiple conciliation conferences convened by the Workplace Relations Commission. Notwithstanding the parties’ engagement at conciliation the employer did not agree to request an investigation by the Court of the within matters under Section 26(1) of the Industrial Relations Act, 1990 as had been previously recommended by this Court. Instead the Trade Union referred the matters to the Court in the manner outlined above.

The Court was provided with extensive submissions by the parties and, apart from being unable to agree whether the matters before the Court have been previously resolved, the parties have disagreed fundamentally as regards matters of fact.

For example, one of the matters before the Court is the Trade Union’s contention that in January and February of 2019 certain Trade Union members who had engaged in industrial action in 2018 had suffered a reduction in hours but that other workers who had not engaged in industrial action had not suffered such a reduction. The Trade Union also asserted that workers who had not engaged in industrial action had experienced an increase in hours at the material time. The Trade Union submitted that this combination of events constituted victimisation of the workers who had engaged in industrial action. The Respondent asserted that no worker had received additional hours but rather a range of workers, both those who had engaged in industrial action and those who had not, had experienced a reduction in hours reflective of trade in their department at that time of year.

The Court was provided with no empirical evidence, records or data to support any party’s assertions as regards the factual matrix of the matter in dispute. Instead, the Court was presented with contradictory assertions as regards factual matters which form the underpinning of the matter before the Court.

The fact that parties, who are parties to a collective agreement which includes detailed dispute resolution procedures and who have a long history of engagement, could come before the Court in the manner in which they did in the within dispute and could place irreconcilable assertions as regards underpinning facts before the Court in the manner that they have is a matter of great concern to the Court. It should also, in the Court’s view, be a matter of great concern to the parties before the Court.

Against this background the Court has given very careful consideration to the written and oral submissions of the parties and recommends as follows:

Issue number 1 – Operation of 2006 collective agreement

The Trade Union has submitted that a 2006 collective agreement requires the Respondent, whenever hours become available in the store, to advertise those hours internally in the store before seeking to recruit externally. The Trade Union submits that the employer, in 2015, failed to adhere to the terms of this agreement.

The employer agreed with the Trade Union before the Court as regards the meaning of the 2006 agreement in respect of this matter. The employer submitted that in 2015 and at all times since it has advertised available hours internally when they have arisen before seeking to recruit externally.

The Court has been provided with no clear example of an occasion when the employer failed to advertise internally before advertising externally to fill available hours in the store. The Court cannot therefore conclude that the employer has breached the 2006 agreement in this respect.

The Court recommends that the parties, being in agreement as regards the operation of the 2006 agreement, should ensure continuing adherence to the terms of that agreement until such time as the parties might agree an amendment.

A second issue arises under this agreement insofar as the Trade Union asserted that the 2006 agreement made provision as follows:

• ‘It is agreed that the number of bands created at the original point of assimilation will be used as a reference point going forward’

The employer rejected this interpretation of the 2006 agreement and submitted that the clause in question referred to the number of ‘bands’ and not the number of staff in any given band.

The Court has carefully considered the written and oral submissions of the parties on this matter. The Court has not been able to impute to this clause of the 2006 agreement the meaning ascribed to it by the Trade Union. If such meaning had been intended by the parties the Court believes that such meaning would have been clearly stated. On plain reading of the text before the Court it is clear that the clause refers to numbers of bands and not numbers of positions in any given band.

The Court’s conclusion on this matter should not be read by either party as an inhibition to the creation of 39-hour positions in the store wherever such hours, by reference to business needs, are available and individuals are seeking such positions.

Issue number 2 – Operation of 2014 Night Working agreement.

The Trade Union has submitted that a 2014 agreement dealing with the ending of night crew operations allows a former night crew worker to choose which of two shift arrangements the worker would work into the future.

The clause in question makes provision as follows:

• 
  The two shift patterns that a night worker who transfer (sic) to days for the purposes of this agreement are either
  • 
    (a)A morning shift that will commence between the hours of 5.30am – 8am or

    (b)An evening shift that will end between the hours of 10.30pm – 12 midnight

  
  The number of hours worked will be pro-rated hours during these shifts in line with the colleague’s contract band. The above start and finish time can be amended to reflect the business or colleague’s needs and will be agreed on a mutual basis.

The employer submitted that night crew operations were terminated in 60 stores nationwide under the terms of the 2014 agreement and that in no store was the selection of shift option left to the discretion of the worker. The Trade Union did not accept that submission but was unable to put before the Court an example of another store where the 2014 agreement operated in the manner contended for by the Trade Union.

In all of the circumstances the Court, having carefully considered the written and oral submissions of the parties and the entire text of the 2014 agreement, is unable to conclude that the employer has failed to operate the 2014 agreement in the manner intended by the parties and consequently does not recommend concession of the Trade Union claim.

The Court does however recommend local engagement to assess the degree to which, over time and having regard to the needs of the business, any worker’s ambition to work on a shift pattern which is different to the one he or she currently works might be accommodated.

Issue number 3 – alleged victimisation of 12 staff following industrial action in December 2018.

The Trade Union claimed that 12 staff had experienced a reduction of five hours per week for 10 weeks at the start of 2019. The Trade Union submitted that these staff had engaged in industrial action in December 2018 and that the reduction in hours was a response by the employer to that event. The Trade Union further contended that staff who had not engaged in industrial action had their hours increased at the same time as these 12 workers had their hours reduced.

The employer submitted that approximately fifty to sixty staff had engaged in industrial action in December 2018 but the Trade Union has submitted that the employer has victimised just 12 of these staff. The employer submitted that no staff member had their hours increased at the material time as had been asserted by the Trade Union. The employer submitted that many staff across the store, both staff who had engaged in industrial action and those who had not, had experienced a reduction in hours in January and February of 2019 as a consequence of trading patterns in their departments in the store. The employer submitted that this had occurred across the majority of the employer’s 150 stores.

The Court has been provided with no basis other than the assertions of the parties, to establish what actually occurred in the store in January and February of 2019 as regards patterns or incidence of reduction or increase of staff hours. The Court is therefore unable to make a finding as regards the allegation that the employer has taken an action in that period targeted at 12 staff in an effort to victimise them for taking part in industrial action in December 2018. The Court cannot therefore recommend concession of the Trade Union’s claim.

The Court does however recommend, wherever parties dispute a matter the factual matrix of which can be determined by reference to records, that effective local engagement should take place in a appropriate manner such that the disputing parties can at least share an understanding of underpinning factual matters.

The Court so recommends.

Signed on behalf of the Labour Court



Kevin Foley
DC______________________
10 December 2019Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to David Campbell, Court Secretary.