INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
BEAMISH AND CRAWFORD PLC
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Dispute concerning seniority.
2. The dispute arises from a situation where the Company recently appointed a casual employee to the permanent position of merchandiser on the basis of being the most suitable candidate. The worker was the fourth most senior on the casual list. Since the appointment, the three more senior casuals to the appointee were placed on lay-off and subsequently recalled when business improved. The Union claims that, in accordance with the Company/Union Agreement, management in appointing the fourth most senior casual worker to the permanent post, should also make the three most senior casuals on the list permanent. Management rejected the claim.
The dispute was referred to the Labour Relations Commission and a conciliation conference was held on the 5th of March, 1998. Agreement could not be reached. The dispute was referred to the Labour Court by the Labour Relations Commission on the 6th of March, 1998. A Court hearing was held in Cork on the 12th of March, 1998. A letter recommendation was issued on the 12th of May, 1998.
3. 1. The question of seniority within the Company has arisen on a number of occasions since 1991. At that time a junior casual worker was appointed to a full-time position within the Company. In making this appointment, the Company also appointed the most senior casual employee on the list to a permanent post thus accepting the Seniority List terms of the Company/Union Agreement. In 1994, at lengthy negotiations, it was agreed that no change to the list would be effected.
2. In relation to the present permanent appointment of a merchandiser, the Company did not keep the Union properly informed on various related issues when the position was being filled on a temporary basis. (Details supplied to the Court).
3. There is no distinction between the casual seniority and permanent seniority lists. A seniority list applies on the principle of last-in first-out. The seniority list has been established through normal industrial relations practice through negotiation.
4. The seniority list was ratified in 1991 in relation to its application to compulsory redundancies, the filling of vacancies, and casuals. In this regard a precedent was established at that time when the Company, in appointing a junior casual to a position, also appointed the more senior casual to permanent staff. The seniority list was further ratified in discussions held in 1996 when it was agreed "that seniority continues to apply as in the past in relation to permanent and casual employees".
5. The Union does not wish to have the appointed worker taken out of the position of full-time merchandiser. It has no difficulty with the incumbent. However, the Union seeks a guarantee that, as has been the case in the past the three more senior casuals who have given excellent service to the Company over many years (and still have no pension rights or sick pay scheme), will also be appointed to full-time positions.
4. 1. No company can operate on the exclusive basis of seniority in relation to appointments. Management must retain the prerogative and the right to select the best candidate for any position. Clearly the current situation is untenable in that where one permanent vacancy exists, the Company must now in effect create four permanent positions in order to fill the one real permanent position available
2. The Union has claimed precedent. The Company does not deny that in 1991, it may have proven possible in a larger organisation with a greater number of positions, to accommodate employees in this manner. The situation is now clearly altered and management is not in a position to maintain numbers in employment purely on the basis of seniority on a casual list.
3. The existing seniority list for casuals is not seamless in respect of the casual/permanent axis. Casuals are laid off and recalled on a seniority basis without reference to permanently appointed employees. The fact that a permanent appointee may have come from the casual list is irrelevant and, on appointment to any permanent position, such an employee should be taken out of all casual seniority consideration, and be more appropriately placed on the permanent seniority listing.
4. It is neither feasible nor practicable to seek to introduce an overall seniority system to include both casual and permanent employees. The Company would argue that the current seniority systems operate independently of each other and must continue to do so.
5. The Company must be allowed to effect a fair, equitable and open selection procedure for all vacancies, and therein to select the most suitable candidate in accordance with overall Company and Group Policy and Industry practice.
6. The Company will continue to utilise the seniority listings in relations to recall and lay-off where casuals possess the capabilities to undertake work as required. In this respect the system will continue but it is necessary that an agreement in relation to permanent appointments or indeed uniquely skilled vacancies be facilitated. The casual list as regards seniority is unworkable in these situations, as it is constructed and operated at present.
7. Management is not aware of any other company being asked to create additional permanent positions where the requirement is to fill a single permanent vacancy. The casual seniority cannot be applied in this instance to a former casual on appointment to a full-time position. It is unworkable and was never the intent of the casual seniority system.
8. Suitability and not seniority should be the criterion used for selection to a temporary or permanent post.
The Court has carefully evaluated the submissions made by the parties and the additional information provided after the hearing. The Court cannot find in this material any definitive indication of the original understanding of the parties as to the purpose of the seniority list and the scope of its application.
While it is accepted that the Company did apply the list in the manner contended for by the Union on at least one occasion in the past, this in itself could not constitute a binding precedent for all similar situations in the future. Moreover, the Company has since experienced major restructuring, including significant reduction in staff numbers, which inhibits its capacity to respond with the degree of flexibility which may have been possible previously.
The Court, therefore, upholds the Company's decision in making the appointment which gave rise to this dispute and does not support the Unions position on overall plant seniority.
It is in the interests of both parties that a clear, definitive and practical understanding be formulated for the future filling of permanent positions and for the lay-off and recall of casual staff. In that regard the Court recommends that the parties conclude an agreement which incorporates the following arrangements:-
1. The seniority list should be used for the purpose of lay-off and recall of casual staff. Permanent staff should have a separate seniority ranking.
2. Permanent positions should be filled either by redeployment of existing permanent staff or by selection from the casual list.
3. Where vacancies for permanent positions are filled from the casual list, suitability should be the overriding consideration with due regard being had to seniority.
On the basis of agreement to these arrangements for the future and as a once-off exceptional measure, the Company should seek to accommodate the three workers who are more senior to the person who's appointment gave rise to this dispute, in suitable permanent positions as soon as possible.
Signed on behalf of the Labour Court
15th May, 1998______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.