INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. (1) Foreman's rate, (2) Loss of earnings, (3) Training flexibility.
2. The Company is engaged in the production of citric acid and employs approximately 110 people at its plant in Ringaskiddy. The dispute before the Court concerns the Union's claim on behalf of 75 operators in relation to (1) Foreman's rate, (2) Loss of earnings, (3) Training flexibility. Local level discussions failed to resolve the issues and the dispute was referred to the Labour Relations Commission. A conciliation conference took place on the 22nd of June, 1998. As agreement could not be reached the dispute was referred to the Labour Court on the 24th of June, 1998 under Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place in Cork on the 1st of July, 1998.
3. Operators in the "Pactout" area work a two-shift roster (8.00 a.m. - 16.00 p.m. - 16.00 p.m. - 24.00 p.m.). In 1994/1996 agreement was reached on a reduction in the number of operators per team from five to three. A working chargehand forms part of the team. One position at foreman level was eliminated and the foreman now operates between 8.00 a.m. and 16.30 p.m. The Union is seeking that chargehands be paid the foreman's rate for hours worked between 16.30 p.m. and 20.00 p.m.
4. 1. The foreman's cover in this area has been reduced from 12 midnight to 20.00 p.m. and subsequently to 16.30 p.m. The increased cover for chargehands has come about due to a reduction in the number of foremen from two to one.
2. This means that holiday and weekend cover has to be provided for these foremen. This additional cover has impacted considerably on the social life of the chargehands.
3. The chargehands are entitled to the foreman's rate as a result of the increased responsibility between the hours of 16.30 p.m. to 20.00 p.m. The Union has agreement for the period 20.00 p.m. to 24.00 p.m.
5. 1. The chargehands were appointed under the 1991/1993 agreement "to take responsibility for operations when not covered by a foreman". There were no specific hours agreed and the chargehands received the chargehand rate for all hours worked and not just for hours when the foreman is not present.
2. The elimination of a foreman position means that the chargehand has to operate as a chargehand for, on average, an extra six hours per week.
3. In the 1994/1996 agreement the Company appointed a shift superintendent with responsibility for all operations on site including packaging outside daywork hours. This arrangement gives the packaging chargehand direct supervisory assistance which he did not have previously. The packaging foreman appraises the shift superintendent of the operating status of his area before the end of his workday. He also arranges the work for the evening shift.
4. The rate of pay applicable to the packaging chargehands is the agreed rate for chargehands in the production areas. The application of the foreman rate to this group would have serious implications for the Company's pay structures.
LOSS OF EARNINGS:
6. In 1995 the Company appointed a craft worker to a SIPTU position and the worker concerned applied to SIPTU for membership. The Union argues that it advised the Company against proceeding with the appointment until the position, in relation to membership, was agreed. On the 28th of November, 1995, the Company went ahead with the appointment and this resulted in a 3 1/4 hour work stoppage. The Union is seeking payment for the loss of pay incurred.
7. 1. The Company should not have appointed the worker until clearance had been given by SIPTU No. 2 Branch. Its action can only be seen as interference in Union matters.
2. The Union must abide by the Irish Congress of Trade Unions directives on transfer of membership. It rejects the Company's claim that the delay in processing the worker's application for membership was orchestrated by Union representatives on site.
3. The Company was requested in this instance to abide by procedures. It refused to do so and its action led to a work stoppage and subsequently to a loss of 3 1/4 hours' pay by the workers concerned. In the circumstances the Union's claim is justified.
8. 1. The Company did not anticipate any problem regarding the worker's transfer to an operating position in Utilities. There was no other internal applicant for the position and craftsmen had transferred to SIPTU positions in the past.
2. The Company has the right under the Company/Union agreement to make the appointment. If the Union had a problem, this should have been raised with the Company through the grievance procedure. An unofficial work stoppage was not the way to resolve the issue and was in breach of the Company/Union agreement.
3. The Company has never paid employees for time not worked due to industrial action and this position is fully in accordance with normal industrial relations practice and the Company/Union agreement. To do otherwise would have serious implications for industrial relations in its operation.
9. Prior to 1994/1996 Company/Union agreement all four-shift operator training in the "Recovery" department was normally carried out on overtime. In March, 1997, the Company proposed to train an operator in other duties and replace him with a day operator. It argues that this situation is covered under Clause 2D of the agreement which states:-
"All operators could be required to train or operate in another area
as required even if their normal job is running. (If their normal job
is running, this would be manned by another operator). Cover
opportunities will remain with the permanent job holders."
The Union argues that the final sentence of this paragraph 'cover opportunities will remain with permanent job holders' takes precedence.
10. 1. This agreement was signed following intensive negotiations within a specific time frame. It was always the Union's understanding that the final sentence of Clause 2D 'cover opportunities will remain with permanent job holders' takes precedence. However, the Company is insisting on part-timers and casual staff taking precedence, which results in loss to the permanent job holders.
2. It is the Union's contention that the permanent job holders are the full-time job holders within the discipline, temporary part-time or casual staff cannot be deemed to be permanent job holders. In the circumstances, the Union is seeking that the Court confirms that the cover opportunities remain with the permanent job holder in accordance with the agreement.
11. 1. Clause 2.5(d) of the 1994/1996 Company/Union agreement headed "Training Flexibility" is very clear and could only mean that a change in the existing practice for on-the-job training was required.
2. The Union and employee representatives discussed this Clause in detail with the Company as is evidenced by the sentence which was added to the original Clause in order to safeguard the job holder's cover.
3. The Union's interpretation that "another operator" only means a four-shift operator whose job is shutdown or an operator called in on overtime and not a day operator is spurious. Effectively the Union's interpretation means that the past practice would not have been changed in any way by this agreement.
4. This Clause was discussed in detail during negotiations, was not an issue at Labour Relations Commission conferences, was ratified in a Labour Court recommendation and accepted by employees in a ballot.
5. The business needs this type of flexibility in order to compete in an extremely difficult market environment. The rates of pay are extremely good having their basis in the pharmaceutical industry. The Company paid more than the PCW pay terms for this training flexibility and other changes. In the interests of the business the Company cannot afford to have agreed changes such as this rolled back.
Claim by packaging chargehands for foreman's rate on evening shift
The Court is satisfied that the present permanent differential paid to chargehands is intended to compensate for the provision of cover at times when a foreman is not on duty.
The Court does not, therefore, recommend concession of this claim.
Claim for loss of pay due to a work stoppage
The work stoppage which gave rise to this claim was unofficial and contrary to the Union/Company agreement. In these circumstances there can be no question of payment for the time lost being appropriate. There is a serious obligation on both parties to honour their obligations under the agreement. Where grievances arise they should be processed through the appropriate procedures without any interference with normal working.
Interpretation of Agreement (Training and Flexibility Clause)
The Court has been asked to interpret a Clause in an agreement concluded by the parties in 1995, which deals with training, flexibility and the provision of cover for operators who are engaged in training on operations outside their normal job.
While the words used in the disputed clause lack clarity, the Court is satisfied that they do convey agreement between the parties to change the practice for providing cover which previously existed. On that basis the Union's contention, that the status-quo prior to the conclusion of the agreement should continue, cannot be correct.
The relevant clause provides, in effect, that where an operator is required to train or operate in another area, and their normal job is running, this would be manned by another operator. The terms"another operator"is not qualified and as a matter of interpretation, the Court cannot import words into an agreement which the parties did not use. The term must, therefore, be interpreted literally, as meaningany other operator.
Signed on behalf of the Labour Court
20th July, 1998______________________
Enquiries concerning this Recommendation should be addressed to Fran Brennan, Court Secretary.