INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr McGee
Employer Member: Mr Grier
Worker Member: Mr Nash
1. Interpretation of an agreement.
2. The issue relates to a dispute involving 3 workers employed by APW Galway Ltd, and the interpretation of the Union/Company Agreement relating to Temporary Transfer of an employee to a higher paid job, the terms of which are outlined in the Agreement. The Union claimed that in accordance with the Agreement any employee involved in a temporary transfer to a higher grade job the higher rate will be paid so long as he/she had worked a minimum of eight hours, on each occasion, in the higher paid job.
The Agreement states that:
"In the event of the temporary transfer of an employee to a lower paid job there will be no reduction of basic pay rate. In the event of temporary transfer of an employee to a higher paid job, the higher rate will be paid so long as the employee is performing effectively against the specific grade criteria and has worked a minimum of eight hours, on each occasion, in the higher job. This eight hours will be back paid at the higher rate also".
The Company rejected the Union's claim and interpretation of the Temporary Clause of the Agreement and states that the higher rate will be paid so long as the employee is performing effectively against the specific grade criteriabut an employee could not progress through grading structure in any way other than the well established 6 monthly grading review mechanism.
The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 5th December, 2005 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 15th February, 2006.
3.1 The Union submits that the Temporary Transfer clause is intended for short term intermittent transfers to fulfil a need. Being short-term and temporary by its very nature, it is not designed to cater for training or six monthly reviews.
2. Those temporarily transferred into higher grade jobs are perceived to be capable of doing the job to the grade standard from the onset. Hence the temporary transfer.
3. The Union submits that the workers concerned were chosen for temporary transfer because the Company knew they were capable of performing to the grade standard from the onset.
4. For the Company to try and suppress the rate of pay for long periods of time is unfair and contrary to the letter and spirit of the Agreement. That any worker involved in a temporary transfer to a higher grade job should be paid in accordance with higher grade rate, so long as he/she has worked a minimum of eight hours on each occasion in the higher paid job.
4.1 The Company highlight the fact which is equally well supported by custom and practice that individual employees cannot on either a temporary or permanent basis seek to have the top grade for a job applied when they are not fully trained in that job nor have they completed the process provided for under the normal grade review mechanism for that job. It is for that reason that the clause on Temporary Transfers contained within the Company/Union Agreement included the concept of "performing effectively against the specific grade criteria".
2. The Company cannot accept that the Company/Union Agreement provides any justification for an increase, be it temporary or otherwise from grade 5 to grade 3 for the employee concerned and the Company's position in this regard is well supported by previous practice.
3. Notwithstanding the Company's trading situation which in recent years experienced an increasingly challenging trading situation the workers have received all increases falling due under National Wage Agreements. The current claim is in breach of Section 1.5 of Part 2 of the Programme for Sustaining Progress and that the Union is attempting to alter agreed and existing arrangements in relation to temporary transfers.
4. The effect of the Union's claim would be to increase the Company's labour cost base. The Company contend that this claim is without merit and is precluded under the terms of Sustaining Progress.
Having had it explained at length at the hearing, the Court notes the differing interpretations of the Agreement. The Agreement clearly lacks clarity and consistency. The Court accordingly recommends that the parties should jointly re-examine the wording of the agreement with a view to arriving at a consensus which allows the Company to best operate in its competitive market without detracting from the present level of flexibility and is transparent and clear to all parties.
Signed on behalf of the Labour Court
20th February, 2006______________________
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.