FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : NORTH CORK CO-OP (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Connolly Worker Member: Ms Tanham |
1. Outsourcing
BACKGROUND:
2. This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 21 October 2019 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 22 November 2019.
UNION ARGUMENTS:
3. 1. The Union states that the job should be retained as is and it should remain as a directly employed role for the company.
2. The Union contends that the possibility of a voluntary redundancy could be considered as a means of securing a resolution.
3. The Union states that the Worker does not want to transfer across to the new Employer.
EMPLOYER ARGUMENTS:
4. 1. All alternatives which were suggested by SIPTU, were reviewed by the company and subsequently offered by the company, however, they were declined by the Worker.
2. The Employer states that this is not a redundancy situation giving rise to a payment for loss of role.
3. If the Worker refuses to transfer then he is deemed to resign his role.
RECOMMENDATION:
The issue in dispute is the Employer’s proposal to outsource its artic truck transport function by way of Transfer of Undertaking Regulations (TUPE). One driver is affected by this proposal. The Union on behalf of the Driver raised concerns in relation to the proposal. It is the Employer’s submission that following on from the retirement of one artic truck driver in 2016 they carried out a review and decided that it was not practical for them to continue to have the artic truck transport function in house. The administrative tasks attached to that function are a drain on their resources and not a productive use of same when there is only one artic truck.
In accordance with the legislative requirements the Employer met with the Worker to set out their position. On foot of a request from his Union the Employer considered three options; 1) An alternative job in the factory. 2) Buy/ Use the truck and operate as a sole trader and 3) transfer across to the new Employer. It is the Employer’s submission that they put forward proposals on these three options, but they were rejected by the Worker. The Worker is looking for a redundancy package, but the Employer is not in a position to facilitate redundancy as the position is still available and is being transferred in line with the legislation.
The Union Submitted that there is no reason why the Employer should outsource this task and that they could continue to keep the transport function in house. In the alternative they are seeking a redundancy package. They are not disputing that the Employer complied with the legislative requirements for a Transfer of Undertakings. However, the Worker does not want to transfer across to the new Employer. In relation to the other options it is the view of the Worker that these are not feasible.
The Court having read the submissions of the parties and listened carefully to the oral submissions on the day recommends that the Worker be given two weeks from the date of this Recommendation to consider the three options set out above. If at the end of that period the Worker has not selected one of the options set out, then the Transfer of Undertakings should proceed. The normal engagements in relation to such a transfer should take place.
The Court so Recommends.
Signed on behalf of the Labour Court
Louise O'Donnell
MK______________________
22 November 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Mary Kehoe, Court Secretary.