Labour Court Database __________________________________________________________________________________ File Number: CD86847 Case Number: LCR10990 Section / Act: S67 Parties: KILLARNEY HOTELS LTD. - and - ITGWU |
Claims concerning (a) service charge distribution and (b) the payment for overtime worked instead of time-off in lieu in the restaurant. Claim (a) - Service charge distribution.
Recommendation:
8. Having considered the submissions made, the Court can find no
compelling reason to amend the form of service charge distribution
which seems to operate favourably in respect of all staff. The
Court does not therefore recommend concession of the Union's claim
in this respect.
In respect of the claim on the payment of overtime the Court
recommends that the employer's offer be accepted.
Division: Mr O'Connell Mr Heffernan Mr O'Murchu
Text of Document__________________________________________________________________
CD86847 THE LABOUR COURT LCR10990
CC861248 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR10990
Parties: KILLARNEY HOTELS LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Claims concerning (a) service charge distribution and (b) the
payment for overtime worked instead of time-off in lieu in the
restaurant.
Claim (a) - Service charge distribution.
Background:
2. The Company is comprised of the Hotel Europe, Hotel Dunloe
Castle and Ard-na-Sidhe. They employ over 110 permanent staff on
a seasonal basis. The season runs from April/May to October
approximately. During negotiations in May, 1986 the Union sought
clarification on the way service charge was calculated and
distributed. This was provided at the meeting and confirmed by
letter dated 26th May, 1986. The service charge is calculated on
a points basis (i.e. each grade has a fixed number of points).
The total amount distributed is the total service charge less
casual staff wages of departments that directly attract service
charge. The Union objected to the casual staff wages being paid
from the service charge pool. They maintained that these workers
should be paid by the Company directly and that those workers who
contributed to the service pool should be included in the share
out. The Union also objected to the method of distribution of the
service charge. The matter was referred to the conciliation
service of the Labour Court on 22nd July, 1986. A conciliation
conference was held on 29th October, 1986. As no agreement could
be reached both parties agreed to refer the matter to the Labour
Court for investigation and recommendation. A Labour Court
hearing was held in Killarney on 3rd December, 1986.
Union's arguments:
3. (a) At the beginning of the season some workers returned
from abroad after they had been recalled to duty by the
Company. These workers were taken on as casuals until
such time as business improved in the hotels. This
meant they were not on the staff pay roll and were paid
from the service charge pool. Some of these workers
worked 40 hours or more a week. These workers income
during the winter months depends on the amount of
P.R.S.I. and P.A.Y.E. tax that they pay during the
season. Consequently they should be paid out of
Company funds and not the service charge pool thus
enabling the appropriate deductions to be made.
(b) Payment of casual staff from the service charge pool is
a deviation from practices which are common in
unionised hotels around the country.
(c) The workers are dissatisfied with the present method of
distribution of the service charge. They are seeking a
mechanism whereby everyone will know precisely how many
points they are entitled to and the value of each
point (details supplied to the Court). Consequently
they would know what their earnings are every week.
This would be consistent with various agreements
between hotel and catering establishments and the Union
throughout the country.
Company's arguments:
4. (i) In order to cater for certain types of business, for
example banquets or in the restaurant etc., it is
necessary to use casual staff from time to time.
Because of this, extra turnover is generated and
therefore the service charge is correspondingly
increased. This is to the benefit of the permanent
staff who share in the increased service pool without
having contributed to the increased service generated
(details supplied to the Court).
(ii) The Company distribute all service charge except for
this one deduction. This is not the case in most
hotels where the composition of service charge, where
it does exists, is a grey area. For example, even in
the JLC provision is made for a fixed service payment.
(iii) It is not realistic or acceptable for the Union to try
and treat the service element of pay in isolation from
the total package of remuneration and benefits which
apply in the Company (details supplied to the Court).
Claim (b) - The payment for overtime worked instead of time-off in
lieu in the restaurant
Background:
5. It has been the practice for many years in the Company not to
pay overtime to workers in the restaurant area. Instead a system
of "plus and minus" operated whereby a worker would receive time
off in lieu of any overtime worked. During negotiations the Union
expressed concern that this system could be open to abuse. The
Company put forward the following proposal:
"The tolerance will be defined as one hour when
required. If possible this will be compensated by
time-off. However, in the event that this is not
possible, the balance due at the end of one month will
be paid out at overtime rate on the next pay day."
This was rejected by the Union. This issue was also subject to
discussion at the conciliation conference held on 29th October,
1986. It was also agreed to refer this issue to the Labour Court
for investigation and recommendation as no agreement could be
reached.
Union's arguments:
6. (a) The Union cannot condone the fact that when workers
work overtime they will not be paid. There is no
objection to a worker seeking time off in lieu of
overtime if it is his/herwish. In every other
department of the Company overtime is paid.
(b) The Union is seeking that overtime be paid as in every
other department and in accordance with the Employment
Regulation Order of the Joint Labour Committee which is
the minimum requirement of the Industry.
Company's arguments:
7. (i) Due to the nature of the business, when guests remain
on in the restaurant it is necessary to have staff
present. The volume of business fluctuates and there
are times when the "core/or presence" hours have to be
paid for even when there are no customers in the
restaurant.
(ii) The custom and practice has been that if a staff member
remains then he/she is given time in lieu at the
earliest opportunity and usually within the one week.
A written record of "plus and minus" is maintained in
the restaurant. For the most part the individual would
have benefited from additional time off.
(iii) The paying of overtime for this type of flexibility
would undermine the specific characteristics of the
hotel business especially in a seasonal resort and
certain types of business would become uneconomical,
for example banqueting.
RECOMMENDATION:
8. Having considered the submissions made, the Court can find no
compelling reason to amend the form of service charge distribution
which seems to operate favourably in respect of all staff. The
Court does not therefore recommend concession of the Union's claim
in this respect.
In respect of the claim on the payment of overtime the Court
recommends that the employer's offer be accepted.
~
Signed on behalf of the Labour Court
John O'Connell
________________________
Deputy Chairman.
9th February, 1987.
M.D./J.C.