INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001,
AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004
MCDERMOTT LABORATORIES LIMITED T/A GERARD LABORATORIES
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr McGee
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu
1. Referral from the Labour Relations Commission under the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.
2. The Company is a generic pharmaceutical manufacturer and employs approximately 320 workers. It was purchased by Merck KgaA in 1996 and now operates as a division of the Merck Generics Group. The issue in dispute relates to a change in shift pattern for one employee in the Manufacturing Department who has been employed since 1999. The new shift pattern was introduced in 2004. The decision was made at Group level that all plants should be in a position to work a 24- hour shift pattern as business demanded. The Company introduced a new rotating shift pattern from 7th March, 2005. This change was the subject of a referral to the Labour Court under the Enhanced Code of Practice on Voluntary Dispute Resolution (LCR 18190 refers). Subsequently seven employees decided not to go on the shift system and they worked their old shift pattern. In December, 2005, the Company advised these workers that due to business requirements they would be required to work the new system from 13th March, 2006. The Claimant does not want to change on the basis that the change was not mutually agreed as per his contract of employment of 1999. The dispute was referred to the Labour Relations Commission under the Enhanced Code of Practice on Voluntary Dispute Resolution (SI 76 of 2004). The parties engaged under the process but agreement was not reached. The dispute was subsequently referred to the Labour Court in accordance with Section 2 of the Industrial Relations (Amendment) Act, 2001, as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004. A Court hearing was held in the 10th May, 2006.
3. 1. The Claimant, at interview stage for his position, clearly advised the Company that he was not a "good sleeper" and would have difficulty with an early or late shift. Management outlined that he would only possibly have difficulty with one shift i.e the evening shift and that would only be four nights and when it did come, it would only be every three weeks.The Claimant's shift pattern then was one of three week cycle i.e. 08.15-16.15 Monday to Friday for a two- week period and then evening shift 1400-12.00 p.m. Monday to Thursday, Friday off. His shift pattern pertained exclusively to the Claimant on a "red -circled" basis. Management confirmed that even if there were changes to shift patterns that they would only be achieved by mutual agreement. This is clearly reflected in the Claimant's contract of employment.
2. The change to the Claimant's shift pattern was done without mutual agreement or discussion, contrary to his contract of employment of 1999. The Company's definition of mutual agreement is a fait accomplit. The Claimant was advised that these changes were taking place regardless.The Claimant was advised that should he not make the revised changes that disciplinary action up to and including dismissal would take place.
3. On the 14th March, 2006 the Claimant received a new inferior contract of employment which contained extra provisions not previously expressed in his existing contract. He did not sign because it was contrary to his better interests to do so.
4. The Claimant has facilitated the Company whenever possible, however, on this occasion the shift changes outlined are a fundamental change to working life and coupled with this is the impact on him physically. While the Claimant has no underlying medical condition, it is predominantly the rotation of shifts and the hours themselves that upset his sleeping pattern, a fact the Company had previously acknowledged.
4. 1. The Company complied fully with the provisions of the relevant section of the Company Handbook which deals with the right to introduce any shift and/or working hours it deems appropriate in order to deal with operational or commercial requirements.
2. The manufacturing rotating shift patterns has been put in place because of global corporate policy on factory output capability. The Company is competing in an increasingly competitive global environment and not working the rotating shift patterns required places the Company in an uncompetitive position.
3. The change in shift pattern is supported by an increase in remuneration in consideration of the variation in working times and a shift premium.
4. In the context of LCR 18190, the Company has made the transition to new working hours as easily as possible in terms of advance notice of the changes being given to staff and the provision of transport to staff to return home after public transport hours. Shift patterns have changed on at least five previous occasions in the Company.
5. The Company is prepared to meet with the Claimant to discuss the shift changes. He has refused to meet Management despite numerous attempts to do so.
The Court has considered the submissions, both oral and written, of the parties, in the general context of its previous Recommendation LCR 18190.
It is the view of the Court that, given the supporting medical evidence and the provision in his employment contract which sets out his shift pattern and states that“alternative shift hours maybe required by mutual agreement”,the position of the worker concerned remains red-circled, unique as it is to his particular circumstances, until altered by agreement between the parties. The Court so recommends.
The Court does not accept that the definition of“mutual agreement”as set out in the Company’s letter of 21st December 2005 to the Union member in question is in accordance with the usual definition of this phrase within the industrial relations context.
The Court notes the following provisions from the Company’s Employee Handbook of 2002:-
- Due to the nature of the business the Company reserves the right to introduce/change any shift and /or working hours it deems appropriate in order to meet operational or commercial requirements. No change in shift/hours of work will be implemented without prior discussion with relevant staff.
In the context, however, of the following provision in the Employee Handbook acknowledgement statement (signed by the worker in question in 2002):-
- I understand that the policies, benefits, terms and conditions of employment described in the Handbook are intended to serve as guidelines only and are not intended to form or infer an employment contract between Gerard Laboratories and its employees.
The Court does not believe that the provision quoted by the Company can supplant the “mutual agreement” clause in the Union member's own contract.
The Court, finally, notes the offer by the Company to discuss matters such as these with any individuals concerned, and the Union’s acceptance of this idea where it concerns individual members.
The Court believes that the observations above have provided guidance and a road map for the parties going forward and recommends that they proceed along the lines of that map.
Signed on behalf of the Labour Court
16th May, 2006______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.