Worker

Employer

Anonymised Parties

A Grocery Driver

A Large Supermarket

Representatives

John O' Donnell,  Mandate Trade Union

Lisa Moloney,  IBEC Executive

Act

Dispute Reference No.

Date of Receipt

Section 13 Industrial Relations Act, 1969

CA-00063393-001

10 May 2024

On May 10, 2024, Mandate, the Union submitted a dispute on behalf of their member, regarding a consolidated rate of pay. The Union claimed that the Worker had been unjustly denied this rate.  

The Employer was notified of the dispute on 15 May 2024. On 20 May 2024, IBEC came on record in response to the dispute.

As the Employer did not object to the Unions request for investigation, both parties were invited to hearing on 23 September 2024.

Both Parties filed submissions prehearing.

The Employer has rejected the claim.

As my attention was drawn to the central role of the Briefing document relied on by both Parties in this case, I requested sight of this document.

I received an extract of this document some two weeks post hearing with the final response received from the Union on 15 October 2024.

The Union introduced the Dispute as the Workers exclusion from application for a consolidated rate of pay. He had exhausted the internal grievance procedure.

The Worker is employed on a 35-hour week as a mobile grocery driver/ delivery since May 2004. His hourly rate is €18.48.

The Dispute originated following a workplace meeting hosted by the Store Manager some days before Christmas 2023. At this meeting, the Worker was informed of an imminent pay rise of 4% alongside an opportunity to align with a consolidated pay rate of €18.95 hourly.

There were 6 drivers in the room.

After Christmas, the Store Manager informed the Worker that he was one of 5 drivers on historical pay rates found to be outside the scope for the consolidated pay. The remainder Delivery drivers were aligned to the consolidated rate.

The Worker had planned on accepting the offer of consolidated pay before January 12, 2024.

The Worker actioned a grievance to contest this on 15 January 2024.

“… Having been offered this in the first instance and then being told at a later date that I was not in scope for this offer, it is my belief that this decision by the company is a discriminatory decision towards me. “

The Employer managed the grievance through Ms A and the outcome followed on 19 February 2024.

1 The Store Manager confirmed that the briefing had outlined an option to move to a consolidated contract contingent on a declaration of the Worker being eligible “in scope “for this.

This was clarified as access to the consolidated pay rate was “applicable for drivers on a rate of pay sub €17.00.

The grievance was not upheld.

An internal appeal followed, but once more the grievance was not upheld.

The Union contends that the Employer made an offer of upward adjustment on pay and an opportunity to move to a new consolidated rate and subsequently revoked this some weeks later.

The Worker also serves as a Customer Assistant for approximately two hours daily. He acknowledged that he feared a loss of existing overtime as he feared it may be given to those who had already elected to move to the consolidated scale. He is currently in receipt of the maximum of LSI rate.

The Union has not accepted that the Worker was misinformed by his Store Manager and has contended that the Worker has been wrongly overlooked and excluded from a preferential pay rate.

The Union contended that the worker was treated less favourably than his colleagues by being denied equal treatment which is at variance from the Employers own Equal Opportunities and Diversity Policy

The Union requested that the Worker be permitted the opportunity to move onto a consolidated rate of pay should he so wish at €18.95 per hour.

When asked whether the other drivers present in the room had an issue? The Union replied that they were all post 2006 worker category, but confirmed this issue is live around the country against an already strained industrial relations climate.

The Union concluded by focusing on the workers viewpoint of being left behind in terms of being able to access a preferential pay rate. They did not accept that what occurred was a mistake.

The 4% pay increase was implemented in February 2024 as planned.

The Union received the Briefing Paper and made a further submission on 15 October 2024 which raised doubt on the authenticity of the Briefing note as most of it had not formed an intrinsic part of the December 2023 Briefing.

The Union re stated the claim.

The Employer operates a large Supermarket and has rejected the claim made.

IBEC for the Employer provided a welcome Industrial Relations context and background to this Dispute.

In 2022, the Employer introduced a consolidated rate of pay to all new colleagues who joined the company on customer assistant or driver contracts. The Company had proposed a consolidated pay rate for all employees, but this had been rejected by the employees at large at Collective Bargaining level.

The Company acted in December 2023 by offering drivers on a rate of pay less than the new consolidated rate for drivers, the option to move to a consolidated contract.

Mr A, the Store Manager held a General Meeting with Drivers during December 2023 and informed all staff present of:

1 4% Pay increase.

And

2 the opportunity to move to a consolidated rate of pay.

The Store Manager subsequently discovered that he had made a mistake in the Drivers case as the offer to move to the consolidated rate was contingent on a pre-existing base rate of less than €17.19 per hour.

The Worker in this case had a rate of €17.77 and was informed that he was not eligible to secure the upward alignment.

The Employer went on to process the Workers grievance.

On 19 February 2024, the Employer declared that the grievance was not upheld. Ms A found that the Worker had been misinformed by Mr A, but his base rate of pay placed him outside the scope for elevation. The Employer did not find evidence of Discrimination.

This was appealed on 27 February 2024.

1 The Worker was unhappy with the outcome and reserved the right to raise all issuers at the appeal hearing.

The Appeal was held online on 14 March 2024

The Union contended that there was an opportunity for another rate of pay.

On 19 April 2024, Mr B, Appeals Manager did not uphold the appeal as the higher rate of pay referred to a customer assistant contract moving from historical rate of pay when moving from a non-consolidated store to a fully consolidated store. This did not apply to drivers.

The response incorporated the Industrial Relations backdrop at WRC Conciliation and confirmed that the Company had no scope to alter the workers pay rate unilaterally.

The Employer stood over the operation of the grievance, which ran in accordance with fair procedures and SI 146/2000. The Employer maintained that a Briefing on information on pay increases did not constitute a defined offer.

 There was a pre-determined “cut off “base rate of lower than €17.17. The Worker had already exceeded this.

The Store Manager had made a mistake on this aspect of the briefing.

The Employer referred to LCR 22092 Euro parts Car Parts Ireland ltd / A Worker and ADJ 25311 Cash in Transit Driver v Security Transport as past Decisions on correct adherence to Respondent Policies.

The Employer sought that the case be dismissed.

On 7 October 2024, IBEC forwarded the requested Briefing Document at the centre of this case.

It incorporated details of the planned pay rise of 4% and a proposed Mediation process within the Company. It then incorporated a separate section for the Drivers.

It was the Employers case that this information in the main was shared with the Worker during the grievance procedure.

The Driver Section referred the target audience for the consolidated rate as:

“Who are on a rate of pay less than the consolidated rate of pay of €17.19 after 4% is applied “

It sought a response to the proposal before 14 January 2024 and confirmed that Sunday and Public Holidays would continue at the higher rate.

The Employer restated their desire that the claim be dismissed.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I have had further regard to the post hearing receipt of the Briefing Document and the Union response.

In light of the very apparent human mistake made by the Store Manager, I offered the Parties time to explore the option of mutual resolution of this Dispute during the hearing. It was unsuccessful.

I will remark at this point that both Parties would have been much better served had an issue paper issued at the moment of the Briefing in December 2023.

I am now obliged to share with the Parties the parameters of my jurisdiction when it comes to Disputes submitted in accordance with Section 13 of the Industrial Relations Act, 1969.

Rights commissioners. Replaced by Adjudication Officer in 2015

13.—

(2) Subject to the provisions of this section, where 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 VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

I did canvas both Parties views on whether this was a Dispute related to the rates of pay of a body of workers.?

I received a non-committal response.

The Employer did not respond to the notification of receipt of the Dispute. Time passed and the case was listed for hearing by the WRC without receiving an objection from the Employer.

The Industrial Relations Act 1969 provides a pragmatic opportunity for both Parties in Dispute to have a fresh pair of eyes and ears applied to the Dispute at Adjudication.

The divisors are fairness and reasonableness.

 However, an Adjudicator must have regard to the clear parameters of her Jurisdiction.

On this occasion, this Dispute has originated from a clear hot bed of pre-existing unresolved conflict for both Parties. It is unfinished business. The Employer accepts that it had a much broader change agenda which was not met by universal consensus across the workforce during Collective Bargaining in early 2023.

The Union accepts that while the remaining drivers present at the briefing had not raised an issue, other members around the country were live to it and it had become an issue.

It appears to me that the Employer adopted a fragmented approach and sought to structure and move forward a partisan set of proposals, outside of Union discussions, in the aftermath of not receiving a universal sign off to earlier proposals on the consolidation of pay for all through Collective Bargaining.

It is my opinion that the Worker has been unwittingly caught up in this process.

This Dispute is clearly a pursuance of rates of pay which affects a body of workers within this employment and it places an immediate curtailment on my jurisdiction in the case.

While I have a strong sense of the workers level of dissatisfaction, I cannot consider this claim in isolation.

In a recent Labour Court Decision in LCR 23043 UCD and A Worker

The Worker sought to challenge a disparity in annual leave from her own 27 days to that of 7 of her colleagues which stood at 30 days.

The Labour Court found that it lacked the Jurisdiction to interpret a Dept of Education Circular

“Which circular has general application to a wide range of workers in the third level sector nationally”  

The Employer in this case is a National employer.

I must conclude that I lack Jurisdiction under Section 13 of the Act to make a Recommendation in this case.

I can only remind the Parties of their earlier involvement at WRC Conciliation.

Lack of Jurisdiction, Body of Workers.