FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Recommendationof a Rights Commissioner R-080264-Ir-09/JOC
BACKGROUND:
2. The issue before the Court concerns an appeal by the Company of a Rights Commissioner's Recommendation No R-080264-IR-09/JOC. The worker was employed with the Company since 1994. After five years with the Company the worker changed to a part-time shift pattern and worked 24 hours per week. The Union argues that this was a specific local agreement between the parties. In 2006 an Agreement was reached between the Company and the Union in relation to all employees and included a section covering contracts and shift patterns. A system of bands of hours was introduced and employees could have flexible hours within their band. The Union argues that the 2006 Agreement states that staff whose hours are fixed by local agreement will retain those hours unless otherwise agreed. In this case the worker should be guaranteed 24 hours per week. It is the Company's position that no such local agreement exists and that the worker concerned works to the contract of employment she signed and accepted as part of the 2006 Agreement.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 4th December, 2009 the Rights Commissioner issued the following Recommendation:-
"Based on the letter of the 19th March 1999 the claimant has a fixed 24 hours with respondent and constitutes a local agreement."
On the 12th January, 2010, the Company appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.A Labour Court hearing took place on the 20th May, 2010, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1 It would have been impossible for the worker to change her contract from full-time to part-time without the agreement at local level. The change could not have been made unilaterally. Even in the absence of written confirmation of this change on the worker's file, the letter form then Store Manager in 1999 confirms this change.
2 The worker was unaware of the details of the 2006 Agreement. Staff were given the option of not signing a new contract with regards to the Agreement.
3 The Company reduced the worker's hours without agreement. The worker's hours should be re-instated and she should be re-imbursed for the hours deducted.
COMPANY'S ARGUMENTS:
4. 1 The Union is relying on a section within the 2006 Agreement which relates to employees with specific local agreements who will remain working to those agreements. The worker does not have such a local agreement.
2 Following a certain pattern of hours does not constitute a local agreement as this pattern exists solely to meet the needs of the business. Without flexibility, which is required from all General Assistants, the Company could not function.
3 Should the Company concede the claim, it would be exposed to further claims of local agreements where they do not already exist.
DECISION:
The Court has considered the written and verbal submissions of both parties. After careful consideration of the arguments and documentation presented by both sides in the case the Court has decided to uphold the Company's appeal of the Rights Commissioner's Recommendation R-080264-IR-09/JOC
Signed on behalf of the Labour Court
Brendan Hayes
17th June, 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.