Complainant

Respondent

Anonymised Parties

A Plater layer

A Travel Business

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00021707-001

10/09/2018

This case was referred under the IR Acts as referring to seniority. Both parties were represented, the claimant by his Union and the Employer by their Industrial Relations Manager who was accompanied at hearing by an Operational Manager.

The claim presented at hearing was complex and I will endeavour to summarise the position of the parties articulated at hearing, aided by the helpful submission of written submissions presented at hearing. The key component of this case is the interpretation of integration on intra position mobility.

The Claimant is a long server with the Employer commencing work on 1 January 1999.He was appointed as a Mobile Ganger in August 2006.

Prior to this in September 1999 he had taken on an Integrated patrol man role which then diversified into in a combined Platelayer/Integrated Patrol man.

Mr B, with whom the claimant believes he has been unfavourably compared to took up a patrolman’s position on Line A in 2002 and relocated to the same position in the city later that year The Union understood that Mr A swopped duties in January 2013 and surrendered his Plate layers role and assumed seniority over the claimant in the case. This was contested by the Union, who sought a clarification on the claimant’s seniority.

A response followed in December 2016, which denied the relevance of seniority for the claimant. The Union submitted an email which served as a chronology of the claimant’s position and mentioned that Mr B had received an “integration payment “by way of agreement. This payment had not been applied to the claimant.

The Union claimed that the claimant was senior to Mr B and sought to invoke this. They explained that seniority was important as the “deemed most senior “has traditionally held the option in the first instance of claiming available duties. The claimant has been denied seniority over Mr B.

In support of this, they argued that the claimant was appointed to his role before integration occurred. When seniority occurred, any person, who was carrying out higher duties and appointed to a Southern division held their seniority over those senior on years alone. This confirmed that the claimant had been wrongly classified as junior.

The Union confirmed that working life was difficult for the claimant in the face of this unresolved issue. They clarified that Mr B was a member of a different Union.

The Union submitted a letter from the Employer, which referred to the Allocation of Duties dated 8 December 2010. This letter outlined that “when a senior person opts at the start of the week for a particular duty. i.e. van driving then he should remain with that duty for the whole week, and allow the next senior man to take up any other duties that might be available “

The Union clarified that seniority had been heavily contested by the Union at Company level and pointed to the prior existence of LCR 17200 LCR 19949 and several Conciliation conferences. The Company is currently hosting an internal arbitration scheme to resolve difficulties which arise.

The Employer operates a large Travel Business and dispute the claim presented. The Employer submitted that they were at a disadvantage as they had very not versed on the substance of the claim prior to the hearing. They were aware of the “seniority “wording but had no appreciation that it related to internal van seniority.

The Employer outlined the established recruitment practice at the company and highlighted that reliance of seniority as a criterion for promotion had long since diminished. They discounted the Union reliance on their interpretation that historical agreements elevated the claimants position in the case.

The Employer submitted a copy of an email dated 22 December 2017 where the Company had declared that “…. Is an equal opportunities employer, which does not support any exercising of seniority within gangs or anywhere else in the workplace “?

The Employer contended that there was no basis to the Union claim for seniority within a van and roles were delegated fairly. The Employer was keen to resolve the issue with the employee but stressed that the case would have greater implications for the work force and Mr B was not on notice of the issue.

The Employer emphasised that a considerable body of experts had expended time on assessing the issue of the application of seniority within the company and there was no going back on that sensitive issue. They submitted an external arbitration report dated 2006 and Conciliation Proposals on selection processes dated 2010. They confirmed that an Internal Arbitration Body is currently sitting at the company. The parties took a break to consider the potential for inclusion of the claimant’s issue at that forum and decided against it.

The Employer concluded by re-emphasising that the parties had not agreed a seniority arrangement within mobile vans and the claim should be rejected.

I have given this claim careful consideration. I addressed the Union on the brevity of the wording on the claim form as it did not assist in focussing minds in preparation for the hearing. In addition, the parties had not engaged in a recognisable grievance procedure framework. This meant that a considerable length of time passed at hearing trying to establish the base line of the claim and the employers response to it.

I also addressed the Employer on the lack of prior engagement on this claim and whether they could have prompted earlier discussions with the Union? The Employer confirmed that it was policy to attend the WRC and they were prepared to engage there.

The Labour Court had frequently confirmed that parties must exhaust the internal procedures prior to attending the WRC. This is a fair and reasonable pronouncement. The workplace can play host to a lot of problem solvers at all levels of management and unions , who together can focus on an anomaly such as presented here to identify a workable solution .I believe the parties have missed a real opportunity in skipping this step as it eclipsed the core issue that of the delegation of duties in a van setting .The claimant has lost out by the over politicisation of this claim .

Section 13 (2) of the Industrial Relations Act 1969 provides that a Trade Dispute ( other than a dispute connected with rates of pay of , hours or times of work of , or annual holidays of , a body of workers) exists or is apprehended and involves workers within the meaning of Part V1 of the Principal Act , a party to a dispute may refer it to a rights commissioner / Adjudication Officer )

I have given some thought on whether this claim refers to a body of workers or not? . The claim is about seniority and whether the claimant trumps Mr B in that regard in terms of allocation of duties, some of which attract different payments. I have not heard from Mr B or his Union and most definitely wish to avoid any situation of potential inter union conflict which may intensify this dispute further.

The Union has not sought to revise any pay rates, just that the allocation of work within the van should be allocated on seniority grounds to place the claimant in an enhanced position. On that basis, I believe that I can press on with my investigation of the Dispute and to give my opinion on the merits of the dispute.

I asked the claimant and his Union how he was managing to work in such a confined space without a resolution and he expressed that he found it difficult.

I asked the company if they had a process available at company level to address this claim and they responded, having taken time, that the internal arbitration was currently not deemed a suitable process, but the company remained respectful to the WRC processes.

While the Union referred to a custom and practice arrangement on any one carrying higher duties appointed to X division holding seniority over future incumbents. The Union did not demonstrate how this had been applied in terms of precedent in the field. The Employer denied this arrangement. For my part, I was struck by the inordinate delay which followed Mr B’s arrival to the van prior to the formalisation of this issue. I formed the view that if an agreement of either custom and practice or formal agreement had been in place at the time of Mr B joining the van in 2013, the parties would have engaged on it much sooner. I go back again to the brevity on the complaint form. The claim was not linked to a breach in a pre -existing agreement.

I think it best that the parties should concentrate on the facts of this case alone and address the case as an individual issue, keeping the claimant at the centre of the Dispute.

I probed the parties on the governance arrangements of the van and I am satisfied that there is a “Ganger “structure which is capable of delegation roles and responsibilities on the principles of equity and fairness.

I have found some merit in this dispute.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found some merit in the dispute. I have taken account of the lack of real time engagement by either party on this claim prior to the hearing at WRC. However, I believe that health and safety concerns have now arisen where the claimant is working in a confined space with this unresolved issue, which make it a priority issue.

I am recommending that the parties return to local talks and seek the input of the “Ganger “in the service to agree a fair distribution of roles and responsibilities within the van setting, based on the Company declaration that seniority is not applied to the distribution of tasks in a van setting.

I urge the parties to conclude these talks within an eight-week time frame from the date of this Recommendation. It will remain open to the parties to process the quest for agreement further either through the local procedures or to the WRC Conciliation service.

Interpretation of Seniority in a work setting.