AD9732

FULL RECOMMENDATION CD/97/171 APPEAL DECISIONNO.AD9732 (721/96) INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ELIDA LEVER LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MARINE, PORT AND GENERAL WORKERS' UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr Rorke

SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No. 721/96.




BACKGROUND:

2. The Union is seeking payment of a premium on behalf of one of its members for full-time forklift truck driving. The Union claims that the worker concerned is employed full-time as a reach forklift driver at the Company's warehouse in Tallaght where other employees receive pay differentials for other full-time duties. The Company contends that the worker concerned is employed as an operative who has chosen, but is not obliged, to drive a forklift full-time. It also claims that the Company/Union agreement of September, 1995, provides for flexibility, including forklift driving, which is reflected in the agreed rate of pay.

The dispute was the subject of a Rights Commissioner's investigation on the 12th March, 1997. The Rights Commissioner issued his findings and recommendation on the 21st March, 1997, as follows:-

"..... I am satisfied that concession of this claim would lead to consequential claims but that, in any event, it, in effect, seeks to bypass an agreement which does not expire until December, 1998. Accordingly, I must find against the claim."

The Union appealed the recommendation to the Labour Court on the 15th April, 1997, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 11th June, 1997, the earliest date suitable to the parties.



UNION'S ARGUMENTS:

3. 1. The worker concerned is the only full-time forklift driver employed in the warehouse. Despite his responsibility and skills he is paid the same as workers on the assembly floor. The worker suffers a very serious anomaly against his colleagues who work full-time in their respective positions, such as chargehands, drivers and canteen staff, who receive pay differentials.

2. It is the norm throughout industry to pay a premium for forklift driving. The worker is fully employed as a forklift driver and rejects the Company's allegation that his duties have been halved. As this claim relates specifically to full-time forklift driving concession of the claim would not lead to consequential claims.



COMPANY'S ARGUMENTS:

4. 1. The Company/Union agreement provides for flexibility within the operative grade, including forklift driving, and this is reflected in the agreed rate of pay.

2. It was not the Company's intention to have a dedicated forklift driver. The worker concerned "claimed" the job based on service with the knowledge that it did not carry a premium. His duties have been halved since January and he has declined the Company's offer of alternative employment off the forklift truck.

3. The majority of warehouse employees use forklifts. The knock-on effect of concession of the worker's claim would have serious repercussions for the Company's viability as a warehouse operator.



DECISION:

The Court, having considered all the issues involved in this case, finds that the Rights Commissioner's recommendation is not unreasonable.

The Court, therefore, upholds the Rights Commissioner's recommendation and rejects the appeal.

The Court so decides.



Signed on behalf of the Labour Court



Finbarr Flood
27th June, 1997______________________
D.G./D.T.Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Dympna Greene, Court Secretary.