FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYER' CONFEDERATION) - AND - FIVE WORKERS (REPRESENTED BY MANDATE TRADE UNION) DIVISION : Chairman: Mr Geraghty Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Christmas Sunday working.
BACKGROUND:
2. The case concerns a claim by the Union that the workers on pre-1996 contracts are rostered for Sunday overtime during the Christmas period.
The Employer said that staff who are rostered to work on a Sunday throughout the year are rostered to work on Sundays during the Christmas period in the first instance and that any overtime is distributed on a fair and equitable basis.
On the 9 November 2018, the Union referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on the 23 April 2019.
WORKER'S ARGUMENTS:
3. 1. A 1996 Agreement clearly identifies that the Workers have the option to work on Sundays including the Christmas Sundays in December.
2. In 2005 a Rights Commissioner supported the established pattern.
3. The long-established pattern for the Workers is where there are three Sundays in December they work one Sunday and where there are four Sundays in December they work two Sundays..
EMPLOYER'S ARGUMENTS:
4. 1. The Employer said that staff who are rostered to work on a Sunday throughout the year are rostered to work on Sundays during the Christmas period in the first instance and that any Christmas Sunday overtime remaining is distributed on a fair and equitable basis.
2. There is now far less Christmas Sunday overtime available in recent years through a combination in a reduction of the requirement for Sunday cover at Christmas and more colleagues working Sundays throughout the year.
3. This adheres to Labour Court Recommendation AD1390.
RECOMMENDATION:
This case hinges around two previous cases. In the first one, in 2005, a Rights Commissioner recommended that one of the claimants in the store in the instant case should be rostered for one Christmas Sunday where there are three such Sundays and for two Christmas Sundays where there are four such Sundays. In a later case, in 2013, this Court found, in respect of another store in the same Company, that the distribution of Christmas Sunday overtime should be fair and equitable.
The Company argues that the guaranteed implementation of the 2005 recommendation is no longer possible, that there is reduced requirement for Christmas Sunday overtime and that, in the first instance, any available Christmas Sunday overtime has to be allocated to those staff who, unlike the Claimants, are rostered to work on Sundays. They point out that the Union made its claim after Christmas 2017 when, in fact, there was sufficient Christmas Sunday overtime available to ensure that the Claimants had the opportunity to work one such Sunday. They argue that this is consistent with the 2013 Labour Court recommendation.
The Union, on the other hand, point to an agreement on transfer of location in 2004, which guaranteed the Claimants that there would be no disimprovements in their conditions and to the 2005 recommendation, which specified their entitlements regarding Christmas Sundays.
The Court is clear that an employer cannot be compelled to provide overtime that is not justified by commercial needs. Therefore, if commercial circumstances change, as the Company argues, it is inevitable that any specific entitlements that were dependent on the need for overtime must also come under scrutiny. The Court cannot and will not recommend that overtime unrelated to commercial needs should be created.
However, where overtime is warranted, there is an issue about its allocation. In that regard, the Court concurs with the view in the 2013 Court recommendation that its distribution must have regard to fairness and equity. Under the system operated by the Company, the Claimants are not rostered for Christmas Sundays unless the Company has needs that cannot be met from among those scheduled normally for Sunday work. The Claimants are, therefore, excluded from any initial rosters for such overtime. It is arguable if this meets the requirements of fairness and equity. It seems to the Court that there may be potential for a solution that would allow for the Claimants to be included in any rosters for Christmas Sundays and that the parties should engage to see if a mutually acceptable means can be agreed to this end.
Signed on behalf of the Labour Court
Tom Geraghty
CR______________________
10 May, 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.