FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DONNELLY MIRRORS LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Dispute concerning alternative employment
BACKGROUND:
2. The Company is involved in the manufacture and supply of automotive rear vision systems (prismatic and electrochromic) and employs approximately 430 workers. The dispute concerns three workers and arises from the Company's decision to sub-contract out its catering facility. The workers concerned were offered the following three options:
(1) Transfer to direct work in the factory.
(2) Under the Transfer of Undertakings Legislation to become employed by the sub-contractor.
(3) A severance package based on a 1994 Agreement which provided for four weeks pay per year of service inclusive of statutory entitlement with a ceiling of two years.
These options were rejected and the dispute was referred to the Labour Relations Commission. Conciliation conferences were held in June and September, 1998, but agreement could not be reached. The dispute was referred to the Labour Court by the Labour Relations Commission on the 28th September, 1998. A court hearing was held on the 15th October, 1998.
UNION'S ARGUMENTS:
1. The three workers have service ranging from 11-20 years with the Company. Each worker has spent all these years as a catering operative and their only relationship with the Company has been within the catering environment.
2. The Union has rejected the options presented to the workers by the employer because;
(1) The offer of transfer under the Transfer of Undertakings Legislation is unacceptable due to the uncertainty attached to maintaining their conditions over an ongoing period.
(2) The severance package is insufficient, and the Company's position is that this package is non-negotiable.
(3) The transfer to direct work is unacceptable because there is no offer of compensation for the disruption which the workers will inevitably experience.
3. The Company's approach is seen by the workers as arbitrary and unyielding in relation to options (2) and (3).
4. The options proposed to the workers do not take into account the nature of the real change being imposed on them. Should the workers wish to avail of a severance package it should be enhanced to take account of the significant change in circumstance imposed. If the workers take the option to transfer to direct employment they must be compensated in recognition of the significant effects the changing work environment will have on them.
COMPANY'S ARGUMENTS:
1. The Company has operated at a considerable loss for a number of years and as part of an overall effort to reduce these losses the company took the decision to contract out the catering service. This service is not part of the core business. The Company believes that it can substantially reduce the cost of the service while simultaneously improving its quality and efficiency by engaging a professional catering organisation in this capacity.
2. The Company has offered to transfer the workers to its core operation at a level of pay appropriate for the work to which they are assigned, but certainly no less than their present rates of pay, inclusive of shift premium and in accord with their present shift patterns.
3. Workers alternatively may remain in their present positions as employees of the contractor under the Transfer of Undertakings Legislation or accept the voluntary severance terms as per Labour Court Recommendation No. 13894. Since the workers have lengthy service the severance package would be significant.
4. The Company has been willing to explore a situation designed to give the workers concerned, should they not wish to consider the possibility of a transfer to the contractor, the opportunity to transfer to the Company's core business, whilst retaining their opportunity to take the voluntary redundancy package within a period of 12 weeks.
RECOMMENDATION:
The Court notes that the employees involved in the canteen service were offered a number of choices as a result of the contracting out of the canteen. These choices include:
- a transfer to the core operations of the company, at a level of pay appropriate to the work to which they are assigned, but not less than their present rate of pay as stated by the employer;
- remain in their current positions as employees of the contractor while exercising their rights under the European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) Regulations, 1980;
- accept voluntary redundancy as per previously accepted severance package.
It became clear at the hearing that the Union do not consider the option of transferring the claimants to the new catering company as a viable option in this case and therefore, did not wish to exercise their rights under the above mentioned regulations.
Therefore, the Court recommends that in the unique circumstances whereby, the canteen service as operated by the company is effectively closing down, the three catering operatives concerned should be offered £100 gross per complete year of service as compensation for their transfer to core operations in the company.
This recommendation is made without prejudice to the position of either party and is without precedent for any future transfers that may arise in the company.
On acceptance of this proposal the staff will transfer immediately and will have a period of 12 weeks in which to decide to remain in the company in core operations or to take voluntary severance. In the event of opting for voluntary severance the package will be offset by the lump sum as described above.
The Court also considers that the redundancy package offered by the Company is fair and reasonable in the circumstances, for the employees involved.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd November, 1998______________________
TOD/BCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.