INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
ROCHES STORES (LIMERICK)
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Mr Flood
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Post-Christmas closure (December 27th).
2. Traditionally, the Limerick Distributive Trades met collectively and agreed Christmas working hours and store closure arrangements with various Unions on a year to year basis. Such arrangements provided for the suspension of the rota day off in the week preceding Christmas, with the next working day after St. Stephen's day (usually December 27th) to be taken off in lieu.
The Company, due to the changing nature of the business, and, in response to customer demand, has been seeking to open for business on December 27th for some time. In the context of seeking agreement for Christmas 1998, the Company proposed to red-circle staff employed pre-September, 1997, thereby not requiring them to work on December 27th. (Staff recruited post-September, 1997 have contracts of employment requiring them to work on December, 27th).
The Union's position is that a resolution of the issue can only be reached by way of collective agreement and, accordingly, some incentive or improvement in wages/conditions would be required in return for concession of opening on December, 27th.
The matter was the subject of a conciliation conference under the auspices of the Labour Relations Commission, at which agreement was not reached. The dispute was referred to the Labour Court, on the 7th of May, 1999, in accordance with Section 26 (1) of the Industrial Relations Act, 1990. The Court carried out its investigation, in Limerick, on the 24th of August, 1999, the earliest date convenient to the parties.
1. The Company has a fundamental right to trade. The Union's actions, in refusing to allow the Company to trade as necessary, have handed an advantage to the Company's competitors, many of whom already have the type of post-Christmas arrangements with the Union, which the Company is seeking.
2. Individual employees have accepted employment on the basis of agreed signed contracts to work on December, 27th but have been prevented from doing so by the Union. This is patently not in the interests of these employees who are forced to breach agreed contractual terms.
3. The Company seeks to protect the previous 3-day break arrangements for all long-serving staff. Utilisation of new contracts is the only way to preserve such arrangements while allowing the Store to trade on December 27th.
4. The practices of red-circling and the issuing of new contracts and terms are a regular feature of agreements in the general retail trade. Similar types of arrangements have been freely agreed with the Union elsewhere and at all other outlets in Roches Stores, as required. The Union came to a similar arrangement with the Cork Distributive Trades in 1992, i.e., a red-circle of 3-day Christmas closure for staff employed before a cut-off date. The Union has such arrangements in Limerick with Todds, Dunnes Stores and Penneys. Roches Stores in Limerick remains the only store where this arrangement has been refused.
5. The Company has adopted a patient and long-term approach to resolving this problem. There would be no compulsion on longer-serving staff members to work on December 27th while they would retain the option to do so.
6. Agreements must work to serve the business needs in addition to those of the employees. The Company believes its aspirations to open on December, 27th and its proposed procedure to do so are both legitimate and fair. There could, of course, be no question of paying existing staff in respect of any changed roster that would not impinge on them in any way.
1. The issue of the Christmas break in the Company has traditionally been covered by a combination of two collective agreements. In 1998, for example, there was a broad agreement between the Union and the Limerick Distributive Trades on the arrangements for Christmas working. In that agreement, Clause 3 states "that the issue of the suspension of the rota is a matter for local practice and agreement". The actual Christmas break was dealt with by way of collective agreement between the Company and the Union at local level. Up until 1995, the local collective agreement provided for the suspension of the rota with the working day after St. Stephen's Day being taken as the day in lieu. This arrangement guaranteed the three day break. In 1996, a new agreement was reached. This agreement provided for the one extra day for co-operation with the late nights and the Sundays at Christmas being taken on the day after St. Stephen's Day. A similar arrangement applied in 1997. Consequently, the Union and its members are strongly of the view that the Company has no right to change, unilaterally, the agreements that have existed.
2. The Union does not accept that the Company has the right to roster new staff, which it has recruited since September, 1997, without there being an overall collective agreement in place. In accordance with the Terms of Employment (Information) Act, 1994, the Company is obliged to inform new staff of any collective agreement which affects the terms of their employment. It would seem that this has not been done in respect of the collective agreement covering the Christmas break.
3. The Christmas break is a very important issue for all staff, including new staff. On the issue of opening on Monday 28th December, 1998, the staff voted overwhelmingly against opening. The Union is prepared to contemplate changing existing agreements in return for some incentive or some improvement in wages or conditions. In an effort to get agreement it identified a number of areas, for example, the 3% under Clause 3 of PESP., an increased Christmas Bonus or extra holidays. Despite the Christmas break being part of the Company's agenda since as far back as 1992, in return for the 3%, it has not been prepared to make any concrete offer to facilitate changing existing agreements.
The Christmas working arrangements have been arrived at by use of the agreement covering the suspension of the rota. This suspension is subject to local practice and agreement and has, in recent times, resulted in the day after St. Stephen's Day being taken off in lieu.
In the absence of such local agreement to suspend the rota these arrangements for the 27th of December do not apply, and the 27th of December is a working day.
In this particular case, however, the longer-serving staff are not being requested to work.
Taking into account all the information supplied and the position of other shops, including those represented by the Union, the Court finds no reason why those with specific contracts to work on the 27th of December should not work as contracted.
Signed on behalf of the Labour Court
27th September, 1999.______________________
Enquiries concerning this Recommendation should be addressed to Michael Keegan, Court Secretary.