INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Payment of replacement staff covering for leave of absence.
2. The dispute concerns the rate of payment for replacement (temporary) staff when covering for permanent staff on unpaid leave of absence. The Union contends that the replacement staff should be paid the full rate (productivity rate) applicable to permanent staff, while the Company maintains that replacement staff should be paid the basic rate (trade rate). The current productivity rate is 190% that of the trade rate. The Company maintains that an agreement has operated since 1994 whereby the trade rate applies to replacement staff.
Unpaid leave of absence was first introduced in 1987. During the period 1987 - 1994, the Company employed a number of temporary staff on a panel basis. This led to temporary staff building up considerable service (4/5 years). During the same period, it was agreed that the longest serving temporary staff member attained the productivity rate as a result of covering for a permanent worker on unpaid leave. The Union claims that there is a further complication in that the temporary worker who directly replaces the permanent worker might not have the longest service, and so would not attain the productivity rate.
In 1994, in the context of the 3% local bargaining clause of the Programme for Economic and Social Progress (PESP), an agreement was reached to:
(a) pay the 3%
(b) make 5/6 of the longer temporary staff permanent
(In the end, the Company offered redundancy to 8 permanent workers and made 8 temporary workers permanent).
The Union claims that up to this point there was an agreement whereby:
(1) All temporary staff with 12 months or more service were paid the productivity rate,
(2) Temporary staff being used to cover absent permanent staff were also paid the productivity rate.
The Company claims that at a meeting on the 27th of June, 1994, a letter was handed to the Union which stated that the Company would engage full-time temporary staff to cover for maternity leave, career breaks, long-term illness etc. The period of contract could vary but would not exceed 11 months Trade rates of pay would apply at all times. (The Company has applied these conditions since June 1994). The Union maintains that it rejected the letter and that no agreement was reached. The Company believes that agreement was reached on the proposals in the letter. The Union also maintains that it was not until 1996 that it became aware that the most senior member of the temporary staff was not being paid the productivity rate to cover a person on unpaid leave.
The dispute was referred to the Labour Relations Commission and a conciliation conference took place on the 13th of February, 1997. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 26th of September, 1997, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 3rd of October, 1997.
3. 1. The Union at no time agreed to the Company's proposals in the letter of the 27th of June, 1994. Under the 1994 3% PESP agreement, it was intended that the Company would not engage new staff for longer than 11 months (although some new staff have been engaged for a longer period). However, this arrangement did not mean that those in the Company for longer than 12 months, or covering for absent permanent staff would not continue to receive the productivity rate. The Company did not get agreement on any change in this area.
2. The Company does not have the right to impose a change without negotiation. The leave of absence arrangement is beneficial to both parties. Given that there is no cost to the Company, it is right that temporary staff covering for absent permanent staff should be paid the productivity rate.
4. 1. The 1994 3% PESP agreement changed the Company's policy on temporary staff. Eight temporary staff were made permanent. To create these vacancies, the Company offered voluntary redundancy to 8 permanent workers at a considerable cost. The letter of the 27th of June, 1994, contained the new proposals regarding temporary staff. The Company assumed that the proposals had been agreed to by the Union, as it has to date recruited and dismissed numerous temporary staff as per the agreement. The Union made no complaint until early, 1997, when it informed the Company that it was not aware of any such agreement.
2. The Company has endeavoured for many years to remain competitive and provide security of employment for its staff. It is often necessary to employ temporary staff on different terms and conditions which are very good. The Union's claim at present only involves 1 worker. If the Company was to concede the Union's claim, the situation would revert to what it was prior to 1994, and would only lead to confusion.
While it is clear that the parties disagree on the status of the Company letter of the 27th of June,1994, it is the Court's opinion that the Company, having incurred the costs of extra redundancies in 1994, and having applied the content of this letter onwards, is justified in its belief that its proposal for temporary staff was part of the agreement.
However, it appears that part of this agreement included a Company intention not to have temporary personnel beyond 11 months, a situation that now seems to have changed.
The consequences of this change should be discussed between the parties.
Signed on behalf of the Labour Court
20th November, 1997______________________
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.