INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
CADBURY IRELAND LIMITED
- AND -
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Appeal by the Company against Rights Commissioner's Recommendation No. 755/97.
2. The appeal concerns two workers (S - a member of SIPTU and B an ATGWU member) who work as production operators on the Nomold plant on the night shift. When the plant is running worker B is the chocolate operator and Worker S is the cook. The plant normally runs 24 hours Monday - Friday, but if there is a cut-back in production the first shift to be cut back is the night shift. When this occurs all of the jobs on the plant, including those of the two workers concerned cease. Production then operates between 7.00 a.m. - 10.00 p.m. In 1991 in order to facilitate the start up process in the Nomold plant and eliminate any delays, Management introduced a new position called a plant warmer. The parties were not in favour of advertising this post and the Company appointed worker S to the post on the basis of his seniority (both workers had sought the job). In early 1997 the Nomold plant was again taken down. Worker B claimed that he should get the plant warmer job on the basis that it entailed more of his post than that of worker S. Management rejected the claim The dispute was referred to a Rights Commissioner for investigation. On the 19th of December, 1997, the Rights Commissioner issued his recommendation as follows:-
"In the particular circumstances of this case, I therefore recommend that the Company should agree to the ATGWU's proposal that the position be rotated between the two employees if both are in their current positions when any future plant shutdown occurs, this rotation to be regarded as a wholly exceptional measure and not to be quoted in any other situations that might arise at the Company."
On the 16th of January, 1998 the Company appealed the recommendation to the Labour Court. The Court heard the appeal on the 4th of March, 1998.
3. 1. The plant warmer's job was a new job that was created to deal with various duties that needed to be carried out when the plant was down. It is made up of a number of different elements. The Company acknowledges that a small element of worker B's job forms part of this job, however, there are elements of other jobs in it as well. Some of these other job holders would have as much claim on the job as Worker B.
2. From the Company's point of view, no one worker has a clear claim on the job and all the parties agreed that it should not be advertised. In such circumstances, it is both fair and consistent with the Company/Union Agreement to give the job to the most senior worker provided they can do the job.
3. The Company understands that worker B had reservations about the agreement reached in 1991. He was given the right at the time to progress it through procedure but he did not do so. As a result, worker S carried out the job whenever it has arisen in the meantime. The Company does not believe that it is reasonable for worker B to seek to change the position at this stage.
4. The Company believes that the rules quoted by the Union in relation to claiming jobs in the event of temporary reductions are not relevant in this case because both Worker S and Worker B's normal jobs were down and the plant warmer's job which is the job in question was a totally separate new job.
5. The Company has concerns in relation to rotation. Worker S refused to agree to full rotation. The only concession he offered was that he would rotate the post as long as he was retained in another job in the immediate area. The Company could not give such a guarantee. In line with this position, the only basis on which the Company was prepared to accept the Rights Commissioner's recommendation was that it was without precedent and carried out by occasion.
4. 1. In 1991 the post of plant warmer was given to worker S on a seniority basis. When the Nomold plant was taken out of production in 1997 it was a temporary cutback of less than 13 weeks. In case of temporary cutbacks seniority is irrelevant, as all workers are treated the same, irrespective of their service. Only in a cutback situation of over 13 weeks has a worker the right to claim his service entitlements before leaving the plant or block.
2. While the Company gave the job to worker S on the basis of seniority this has no relevance to the question of a temporary cutback.
3. At various meetings the Union suggested that the post be rotated when temporary cutbacks take place. This is a fair and reasonable suggestion.
4. Worker B has a valid claim as many of the duties of the plant warmer post have elements associated with him, more so than with worker S. In a situation of temporary cutback, seniority should not count. The Company was wrong to allocate the plant warmer job to Worker S on his seniority.
5. The Rights Commissioner agreed that rotation was the fairest way of resolving this problem and recommended accordingly. The Union requests the Court to uphold the recommendation.
Having regard to what is involved in this dispute, the Court would require compelling reasons as to why it should interfere with the recommendation of the Rights Commissioner.
Such reasons have not been shown. Accordingly, the Court upholds the Rights Commissioner's recommendation and dismisses the appeal. For the avoidance of doubt, the Court interprets the Rights Commissioner's recommendation as providing for rotation by occurrence.
Signed on behalf of the Labour Court
13th March, 1998______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.