INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003
DUFFY MEATS LTD T/A KERRY FOODS
- AND -
WILLIAM D'ARCY KIERAN KENNY JOHN HARMON PHILLP HUGHES SEAN NOLAN
(REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION)
Chairman: Mr Hayes
Employer Member: Ms Doyle
Worker Member: Mr McCarthy
1. Appeal of Adjudication Officer Decision No r/154506/509/510/514/515-tu-15/jt
2. This is a complaint under the European Communities (Protection of Employees on transfer of Undertakings) Regulations, 2003.
Mr William D’Arcy, Kieran Kenny, John Harmon, Pillip Hughes and Mr Sean Nolan (the Complainants) complained to the Rights Commissioner under Section 10(1) of the Regulations that Duffy Meats, (the Respondent) their employer, infringed sections 8(1) (d) and 8(4) of the Regulations when it transferred the entity in which they were working to the Noonan Services Group. The Respondent defended the complaint. The Rights Commissioner decided that the complaints were without foundation and dismissed them. The Complainants appealed against that decision to this Court. The case came on for hearing on 9 February 2016.
The Respondent Company operates a meat processing plant in County Wicklow. In 2013 it undertook a review of its operations and decided to outsource all of its electrical maintenance function to a third party that was not impleaded in this case.
On October 3 2014 the Company wrote to the employees’ representative, the TEEU trade Union advising it of the decision and notifying it that the transfer would take effect on the 3rd November 2014. In the same letter it told the Trade Union that it had also secured permission from its parent company to open up a voluntary redundancy scheme for this category of staff and invited them to apply to avail of the package on offer.
The Union asked the Company for details of the number of staff that would be affected by the transfer of engagements. The Company replied that it could not give precise numbers at that time as it was not aware of the numbers of staff that would opt for voluntary redundancy under the scheme.
On 28 October 2014 the Company advised the Union that 21 staff members would be affected by the transfer of undertakings. However between that date and the 3rd November two job vacancies were identified by management. Management decided to fill those positions with two members of the electrical maintenance department that were in scope for outsourcing. The two employees had been members of the TEEU in the past but had been expelled for passing an official picket it had placed on the Company. This reduced the numbers transferring to 19.
The Complainants state that the Respondent, having told them that 21 staff would transfer to the new employer, had misled them by transferring only 19 workers. They state that this had consequences for the shift systems that were available to them and as a consequence they were entitled to all of the relevant details before the transfer took effect. It submits that the Respondent, by its behaviour, infringed sections 8(1) (d) and 8(4) of the Act.
The respondents state that it complied fully with its obligations under each of those sections. It submits that it notified the Union, the workers’ representative, within the meaning of the Regulations, 30 days in advance of the transfer of undertakings taking effect. It further submits that it notified it of the date of the transfer, the reasons for the transfer, the legal implications of the transfer for the employees and advised them of the relevant social and economic implications of the transfer for them. Finally it submits that it notified them of any measures envisaged in relation to them in accordance with sections 8(1) to 8(4) of the Regulations.
It submits that it could not provide the Union with details of the precise number affected by the transfer as it was open to all of them to apply for voluntary redundancy. It submits that it notified the Union of the precise numbers in scope for transfer as soon as possible after the closing date for applications for voluntary redundancy had passed.
It submits that it arranged meetings over the 30 day period to address any questions the Union or employees wished to raise. It states that the Union attended two of those meetings but did not attend on the others arranged dates.
Finally it submits that, in the days leading up to the transfer, two new jobs were identified as necessary core functions it needed to establish. It states that the TEEU had notified the new employer that it would have difficulty working with the two electricians it had been expelled from the Union. It submits that it decided that those two workers were suitable for appointment to the two new positions and proceeded to appoint them to those posts.
It submits that it has fully complied with its obligations under the relevant regulations.
Section 8 (1) of the Regulations states
8(1) The transferor and transferee concerned in a transfer shall inform their respective employees’ representatives affected by the transfer of :-
(a) The date or proposed date of the transfer;
(b) (b)the reasons for the transfer
(c) The legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them
(d) Any measures envisaged in relation to the employees
Section 8(4) states
(4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measure with a view to reaching an agreement”
The Court has examined the extensive documentation before it and considered the written and oral submissions of the parties. The Court finds as follows: -
The Respondent Company notified the employees’ representative on the 3rd October 2014 that it intended to give effect to a transfer of engagement of its entire electrical maintenance function on the 3 November 2014. In the correspondence it explained the reason for the transfer and set out the legal implications of the transfer for the employees. It did not identify any relevant economic and social implications of the transfer for the workers concerned but this was not a matter that the Complainant’s raised with the Court.
In the initial notification to the Union dated 3rd October 2014 the Respondent Company told the Complainants that the new employer operated a fortnightly rather than a weekly pay system. It further advised that all other terms and conditions of the Regulations would apply to their new employment. It noted that Occupational Pensions do not come within the scope of the Act. However it notified the staff that their pension entitlements to date of transfer would be preserved until normal retirement age. A new scheme was agreed with the Transferee employer.
The Respondent submits that it has therefore met its full statutory obligations under the Regulations.
The Union submits that it was misled by the Respondent regarding the number of workers being transferred. It submits that it was initially told that all of the staff in the electrical maintenance function would be affected by the transfer. It submits that it subsequently discovered that two electricians did not transfer and were allegedly redeployed to new posts but in fact continued to function in their old jobs as direct employees.
It argues that this constitutes a measure envisaged in relation to the employees of which it was not notified and is accordingly an infringement of section 8(1) (d) of the Regulations. The Court finds that section 8(4) of the Regulations places an obligation on (in this case) the transferor to notify the workers’ representatives of “Any measures envisaged in relation to the employees “
In this case the “employees” in question are those that are subject to transfer to the transferee company. It does not include other employees in the employment of the Respondent Company. Section 8(4) is intended to protect the interests of the transferred workers in their new employment and not to regulate the subsequent activities of the company from which they were transferred. It is a protective measure to guarantee terms and conditions of employment of transferring staff and not a device through which to manage the affairs of the transferor company.
Accordingly the decision of the transferor to remove some employees from the scope of the transfer is not a matter that affects those that are in scope for transfer. Accordingly the Court finds that that decision did not affect the Transferor’s statutory obligations to those actually transferring.
The Court therefore rejects the appeal, affirms the decision of the Rights Commissioner and determines accordingly.
Section 8(4) Complaint
The documents opened to the Court disclose that the Transferor Company notified the Union 30 days before the transfer date that all staff in the maintenance function would transfer to the new entity. It simultaneously offered staff the option of applying to voluntarily terminate their employment by availing of an enhanced voluntary redundancy scheme that it opened to the staff in question. As it did not know how many if any staff members would apply to participate in that scheme it is reasonable that it could not identify the numbers that would ultimately transfer to the new employer until the final date for applications to participate in the scheme had passed. As soon as the date passed and the Company became aware of the level of interest in the scheme, it notified the Union of the numbers that would ultimately transfer to the new employer.
The Court notes that section 8(4) of the Act requires that the (in this case) transferor give, where reasonably practicable, the Representatives of the affected workers 30 days’ notice of any measures in relation to the employees. In this case the Court has already found that the Transferor gave the workers’ representative 30 days’ notice of the date of transfer and of the matters that affected the employees. It was not in a position to notify the Union of the precise numbers transferring because it simultaneously opened an offer of voluntary redundancy which the Court was told was oversubscribed. However it did so notify the Representative promptly after it had completed the formalities associated with that redundancy process. The Court also finds that the workers affected were aware on the 3rd October that they were transferring to the new entity after 30 days. What they did not know between that date and the 3rd November 2014 was whether their applications, if any, to participate in the voluntary redundancy scheme would be accepted. That is quite a separate matter that did not affect the notifications they received under sections 8(1) and 8(4) of the Regulations.
In all the circumstances therefore the Court finds that the Respondent Company did not infringe section 8(4) of the Regulations in the manner complained of by the workers in this case.
The Court rejects the appeal and for the reasons set out above upholds the decision of the Rights Commissioner.
Signed on behalf of the Labour Court
2nd March 2016______________________
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.