INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
ANTIGEN PHARMACEUTICALS LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION)
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR243/00/MR.
2. The worker joined the Company in 1996, as a maintenance fitter. The Union claims that his contract of employment stated that he was employed for weekend work and 2, 3 or 4 cycle shift as required. The premium for this was 20%.
The worker was employed on the "Farcon" packing line from January to December, 1998, operating a 2-shift cycle with a second worker. On the 11th of December, he was informed that he was to report on Monday, 14th for day work and, as a result, would lose his shift premium (£60 per week). Following a meeting between the management and a shop steward, the Union claims that it was suggested that the worker would begin day work on the 14th of December but would retain his 20% premium until a meeting took place between the parties. In the event, the Company applied clause 5 of the Company/Union agreement where a worker was taken off shift work. This meant no loss of shift for the first 2 weeks, a 50% loss in week 3,a 75% loss in weeks 4 and 5, and no shift thereafter. (The second worker moved to another line but retained his shift earnings). A meeting took place in February, 1999, at which the Union sought compensation of 12 months' shift pay plus loss of earnings. The Company maintained that the only compensation available was as in Clause 5 of the agreement.
The dispute was referred to a Rights Commissioner and his recommendation was as follows:
"In the unique circumstances of this case, I recommend that the Company should agree to pay the worker an additional lump-sum of £250 on a once-off and without precedent basis, and that the worker and the TEEU should accept the change in his contract and in the hours that he has been required to work."
(The worker was named in the above recommendation).
The Union appealed the recommendation to the Labour Court on the 14th of August in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 6th of June, 2001, in Limerick. At the hearing, the Union claimed that on the 17th of July, 1999, a new 2 cycle shift was created and that 2 other workers who were less senior to the worker concerned were employed on this shift. The worker concerned was not placed on the shift until the 2nd of November, 2000. This information was not before the Rights Commissioner when he made his recommendation.
3. 1. The worker was removed from shift work contrary to his contract of employment. This was a unilateral decision made by the Company.
2. The worker had been promised that he would retain his 20% premium until a meeting took place to sort out the problem. This did not happen and the Company applied clause 5 of the Company/Union agreement, resulting in the worker losing shift pay.
3. When the new 2 cycle shift was created on the 17th of July, the worker concerned was the most senior craftsperson and should have been the first choice to fill the position. He was not given the option.
4. 1. Clause 5 of the Company/Union agreement provides fully for situations where employees are required to come off shift. The compensation applied to the worker has been used on a number of occasions in the past.
2. The Company had no choice but to terminate the second shift on the worker's operating line as it could no longer justify it on either business demands or cost grounds.
3. The second worker involved was moved to the only other available shift-working area because of his seniority and suitability.
During the hearing, it became apparent that the main arguments being made by the Union had not been made to the Rights Commissioner.
The Company was not prepared to have what it perceived as a new case dealt with as part of this appeal.
The Court accepts this position and, therefore, considered the case as heard by the Rights Commissioner.
The Court, having considered the written and oral submissions, finds the Rights Commissioner's recommendation to be reasonable in the circumstances.
The Court, therefore, upholds the Rights Commissioner's recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
19th June, 2001______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.