FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : PREMIER PERICLASE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - UNITE DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appointment of Control Room Operators.
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Union on behalf of its members in relation to the selection process employed by the Company when filling Central Control Room Operator (CCRO) vacancies. It is the Company position that CCRO posts are regarded as specialist positions and recruitment into these positions must follow a system of progression and as such are filled from a pool of employees who have completed the requisite training and who lie in the "Named Relief" category. In 2011, three CCRO vacancies arose, two of which were automatically filled from two available Named Relief employees. The remaining vacancy was advertised in line with standard Company recruitment practice and the position was filled accordingly. The Union contends that in line with an existing Company/Union Agreement, the third CCRO vacancy should have been filled from the General Operative (GO) pool of employees. The Union raised their concerns internally with Management and local discussions ensued.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 1st February, 2013, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 3rd April, 2013.
UNION'S ARGUMENTS:
3. 1. The Employer has acted in breach of an existing Company/Union Agreement on how CCRO vacancies are normally filled.
2. The Union contends that the third available CCRO post should have been filled from the GO pool of employees in line with the Company/Union Agreement.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer maintains that all CCRO positions were filled in accordance with standard recruitment practices and existing collective agreements.
2. The Employer rejects the Union's contention that CCRO posts must be filled from the GO pool when there are no Named Relief employees available.
RECOMMENDATION:
The Court has carefully considered the submissions of both parties in this dispute.
The practice in the Company has been for Management to identify staff for training as Shift Relief Operatives in the CCRO area. Vacancies for Named Relief Operatives in this area are advertised, nominally amongst the entire staff, but in practice amongst the cohort of trained Shift Relief Operatives. Named Relief Operatives have right of succession to vacancies for Permanent Shift Operatives in the CCRO area.
In this case a vacancy for a Permanent Shift Operative arose consequent upon the retirement of a long serving post holder. There were no Named Relief Operatives in place at that time. There were however two Shift Relief Operatives undergoing training with the expectation that they would, in time, be appointed Named Relief Operatives and would ultimately succeed to the next available Permanent Shift Operative post.
In the absence of a Named Relief Operative with right of succession, Management advertised the Permanent Shift Operative post vacancy amongst the staff generally. Three workers expressed an interest in the vacancy; the two Shift Relief Operatives and another worker who was employed as an electrician. Management conducted interviews and appointed the third applicant to the post.
At that point the Union objected to the appointment. It maintained that only General Operative staff were eligible for appointment to vacancies in the CCRO area. Management maintains that the manner in which it advertised and filled the vacancy complies with the provisions of the Collective Agreement in place between the parties.
The Court finds that, for very different reasons, there is limited merit in the positions adopted by both parties.
The Union can reasonably argue that the Collective Agreement provides for trained personnel to be appointed to both Named Relief and Permanent Shift positions in the CCRO area. Management normally identifies candidates for initial training as Shift Relief Operatives. In due course they are confirmed by way of interview as Named Relief Operatives with the right to succeed to the next Permanent Shift Operative post that becomes available. Whilst appointment to a Named Relief Operative position is nominally through competitive interview, selection has been confined to trained staff that have progressed through the Shift Relief training procedure. In effect therefore the interview process is confirmatory rather than selective in nature.
Accordingly the Union is entitled to argue that the true construction of the Collective Agreement confirms its contention that the pool of staff from which a Permanent Shift Vacancy can be filled is in effect confined to General Operatives that have undergone the appropriate training and held the post of Shift Relief Operative and Named Relief Operative in the CCRO area.
Management, on the other hand, relies on the wording of Clause 9.13 of the Collective Agreement that states:
" Vacancies, promotional or otherwise, will be filled solely at the discretion of the Company. Vacancies, if they are to be filled, will normally be advertised. Appointments, including relief positions, will be subject to the satisfactory completion of twelve months probation.
The Company has the right to appoint the most suitable candidate to these positions with the exception of positions covered by permanent reliefs."
The Company reserves the right to recruit externally for any position for which, in Management's opinion there are no suitable internal applicants/candidates."
Management maintains that it advertised and filled the impugned vacancy strictly in accordance with the provisions of this clause.
However the Company’s position is not supported by either the text of the clause or by its own practice in this regard.
The text merely states that "Vacancies, if they are to be filled, will normally be advertised". Neither the terms "normally" nor "advertised" are defined in the Agreement. The situation that is before the Court is not normal. Moreover the Union does not dispute the need to advertise the vacancy, rather it disputes the groups that are eligible to apply for consideration for appointment.
Furthermore the practice in the Company supports the Union's argument that the impugned post is normally filled from amongst the General Operative grades.
However the Union in this case was aware that Management was acting on its understanding of the Company Union Agreement. It was aware that the impugned vacancy had been advertised amongst the entire workforce. It was reasonable to anticipate that applications for appointment to the post could be made by any worker in the Company. It appears that the Union was also aware that the Company had offered a candidate from outside the General Operative pool an interview for the position. Yet it did not raise any objection to this process. Rather it delayed raising an objection until after the results of the competition were announced.
The Court takes the view that the Union, having acquiesced towards the procedure adopted by Management, cannot seek to impugn it when it disagrees with the outcome of that procedure. To do so would be unfair to the other candidates, to the Company and to all other workers.
Accordingly the Court recommends that the outcome of the competition should stand; that Management should confirm its commitment to operate the Agreement as clarified above and the parties should review the agreement with a view to aligning its terms with the practice in the Company.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
16th April 2013______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.