LCR22986

PARTIES:

DIVISION:

SUBJECT:

1. Mandate members who were rostered to work on a Sunday had their contracted hours reduced to pay for the Sunday Premium.
2. Historical 9am start

BACKGROUND:

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 7 December 2023 in accordance with Section 26(1) of the Industrial Relations Act, 1990.

 A Labour Court hearing took place on 13 June 2024.

UNION'S ARGUMENTS.

 1. Penneys Portlaoise had a tradition of recognising those who had given service to the Company in small ways. One way of recognising was allowing a small number of senior staff early morning starts. As one left the person with the next highest service moved up the ranking.

2. The Company without reason or explanation simply reduced the number of 9am starts for the Union’s two members. When asked, they simply explained that those individuals who banded had to be given preference by way of their hours, and as the Union’s members chose not to band, they could no longer guarantee that they would be rostered.

EMPLOYER'S ARGUMENTS.

 1. Hours available on a Sunday are distributed in a fair and equitable manner in line with the operational requirements of the store, absence levels, seasonal trading and store budgets. It is respectfully submitted by the Company that allocation of Sunday hours in any manner other than the current method would be unfair and inequitable.

 2. A Collective Agreement between the Company and Mandate Union implemented banded hours across all stores in the ROI in 2014, but the Complainants chose not to opt in.

RECOMMENDATION:

The Court has given very careful consideration to the written and oral submissions of the parties.

The parties have jointly referred two matters to the Court for Recommendation in a trade dispute between two workers and the employer.

• The parties concluded a collective agreement in 2018 dealing with Sunday working and the arrangements to apply to the two workers on those occasions when they engaged in such work as part of their normal working week. The Trade Union claims that the terms of that agreement, insofar as numbers of hours to be actually worked in a week when Sunday working occurs, should have applied with effect from 2007 and seeks compensation for the alleged loss of any earnings arising between 2007 and 2018 from the fact that it did not. The employer contends that no guarantee of hours had been provided to the workers until the 2018 agreement and no loss of earnings arose between 2007 and 2018.
• The parties are in dispute as regards access to 9.00am starts for the two workers concerned. The workers are normally rostered to start work at 10.00am. Occasionally a need arises for a worker to start at 9.00am notwithstanding they are rostered to start at 10.00am. The trade union seeks to have the workers guaranteed ‘first call’ on such starts whenever they are required. The employer has offered to give preference whenever possible to the two workers over other workers in the store whenever the need arises for a 9.00am start in the store by a worker who is not rostered to that start on the day.

The employer has submitted that any concession of the claims of the workers will have consequences for its operations in other stores across the country and possibly in the workers’ store itself.

The Court notes the following circumstances as relevant to the matters before it:

(a) The workers seek compensation for the alleged failure since 2007 to implement the terms which became enshrined in the 2018 agreement, and the consequent alleged loss of earnings. No element of the 2018 agreement provided for retrospection and no claim was made in relation to this matter by the Trade Union before 2019 at the earliest.

(b) No detail is available to the Court as regards the pattern of ‘off roster’ 9.00am working by the two workers since the employer undertook to give them preference over other workers where possible in relation to such working, versus the pattern that could be expected in an arrangement whereby they would, as they seek, always be preferred over other workers for such working.

(c) Whereas the employer contended that the claim before the Court would have consequences across its store network if conceded, the trade union was not in a position for confirm or deny that assertion.

Having regard to all of the circumstances, the Court recommends that both parties accept that:

1. The 2018 agreement is comprehensive and clear in its terms and no element of retrospection can now, six years later, be applied to its terms,

And

2. The employer’s commitment to give preference to the two workers over other workers in relation of the allocation of ‘off roster’ 9.00am starts should be accepted as reasonable.

The Court does not recommend concession of the claims of the trade union.

	Signed on behalf of the Labour Court
	Kevin Foley
FC	______________________
17 June 2024	Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Fiona Corcoran, Court Secretary.