INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Dispute concerning contracts of employment, regarding rostering.
2. In June, 1999, the Company informed the Union that it intended to extend trading hours at the Blanchardstown store on Thursdays and Fridays from 9 p.m. to 10 p.m. as from June, 1999. The Union wrote to the Company on the 14th of July, 1999 seeking a meeting with Management to discuss the impact that the opening hours extension would have on its members. The Company informed the Union that this issue was not open to negotiation, as it was an operational matter and is governed by the contract of employment made between the Company and its workers. The Union subsequently wrote to the Company again seeking a meeting to discuss the issue, but the Company reiterated its position and refused to meet the Union. On the 20th of July, 1999, the Union referred the dispute to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. The Company, by letter to the Court dated the 8th of September, 1999, confirmed its position as already outlined to the Union and declined an invitation to attend the hearing. A Court hearing was held on the 16th of September, 1999.
3. 1. Under the Industrial Relations Act, 1990 there is a requirement on the parties to a trade dispute to exhaust procedures where these exist. In 1996, an agreement was put in place to resolve problems between Management and staff. While the Company has the right to change opening and closing hours, the Unions have the right to raise the consequential effects of such decisions on workers. The Company is in breach of its own procedures.
2. The patterns of work for existing staff have been established for well over two years and while there is provision in their contracts of employment to work to finishing times of 7.30 p.m. and 10.30 p.m., workers are entitled to rely on custom and practice and, therefore, they should not be compelled to work later than their customary finishing time.
3. The majority of staff working in the Company's stores are female and have social commitments. Trading until 10 p.m. means that for these workers many will not actually leave work until after 10.30 p.m. and 11 p.m., particularly those working in grocery. The Company's decision has had a negative effect on these workers. It is a regressive decision and in breach of established conditions of employment. The Union has raised legitimate concerns regarding the safety of workers leaving the Centre so late at night. The Company has not addressed these concerns. The Union has also drawn attention to the effect of the extended opening hours on staff employed on the "Night Pack". As a result of this decision those workers also have had their working conditions worsened.
4. Given that the Company has benefited significantly from the booming economy which has as its core the key policy of social partnership, it is unacceptable that the Company should attempt to veto the legitimate concerns of workers. The Union is seeking that established workers or those with at least one year's service should not be required to work beyond 9 p.m. as established by custom and practice.
5. The Union requests the Court to interpret the "Agreement for resolving problems arising between Management and staff of Dunnes Stores" and to recommend that the Company should not be permitted to deny the right of Union representation on any issue of concern to them simply because the Company deems it an operational issue. The Union is seeking that the Company should provide transport for those workers who are required to work until 10 p.m.
The Court regrets that the Company declined the invitation to attend the hearing in this dispute. The Company did, however, communicate with the Court by letter and the contents of that letter have been taken into account together with the submission made by the Union.
The issues referred to the Court relate to the consequential effects on staff of the Company's decision to extend trading hours at its Blanchardstown store. In the course of the hearing the Union confirmed that it does not dispute the right of the Company to determine trading hours. Neither does it dispute the right of the Company to adjust rosters per-se. Its concern is in relation to consequences for staff of those changes.
It is noted that the Company are unwilling to enter into discussion with Union on these issues. Its position appears to be that they are operational issues which are the sole prerogative of management. Both sides rely on the terms of a procedural agreement concluded between them in 1996 in support of their opposing positions. It is clear to the Court that the source of the present dispute lies in this fundamental disagreement as to the interpretation and intended scope of this agreement.
In its submission, the Union have requested the Court to interpret this agreement. It is not clear that a request for interpretation was contained in this Section 20(1) referral. In these circumstances and in the absence of any input by the Company, the Court could not definitely address that issue at this time. It is clear, however, that the agreement in question was intended to improve industrial relations by providing a framework for resolving individual and collective grievances. It would be profoundly regrettable if its operation was now to become a source of conflict.
The agreement makes no provision for resolving differences as to its interpretation. The Court would, however, draw the attention of the parties to Section 7 of the Industrial Relations Act, 1969, which provides a mechanism by which such disputes can be referred to the Court for adjudication. If the present differences cannot be otherwise resolved, the parties should consider using that mechanism to resolve the current impasse on this issue.
The Union have raised a number of issues, affecting the terms and conditions of its members arising from the changes in their attendance hours. In circumstances in which the right of management to determine trading hours is not being challenged, the Court can see no good reason as to why these issues should not be addressed in dialogue between the Company and the Union.
The Court recommends that without prejudice to the position of either party on the interpretation on the 1996 agreement discussions should now take place between management and the Union on these issues.
Signed on behalf of the Labour Court
28th September, 1999______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.