Labour Court Database __________________________________________________________________________________ File Number: CD86893 Case Number: AD872 Section / Act: S13(9) Parties: TELEMECANIQUE (I) LTD - and - ITGWU;FUE |
Appeal by the Company against a Rights Commissioner's Recommendation regarding a claim for compensation for the loss of overtime earnings.
Recommendation:
6. The Court, having considered the submissions made by the
parties, does not find grounds for altering the Rights
Commissioner's Recommendation which it upholds.
The Court so decides.
Division: Mr Fitzgerald Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD86893 THE LABOUR COURT AD2/87
SECTION 13(9) INDUSTRIAL RELATIONS ACTS, 1969
APPEAL DECISION NO. 2 OF 1986
Parties: TELEMECANIQUE IRELAND LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal by the Company against a Rights Commissioner's
Recommendation regarding a claim for compensation for the loss of
overtime earnings.
Background:
2. Over the past two years four machine setters employed in the
Company's injection moulding department were in receipt of
considerable weekend and end of shift overtime. Their overtime
earnings for the two years in question were as follows:
Name 1984/85 1985/86
Worker A #3371.00 #6,374.00
" B #2807.00 #6,265.00
" C #2438.00 #2,985.00
" D # 593.00 #3,573.00
Since May, 1986, the workers are no longer required to work this
overtime as the necessity to do so does not now exist arising from
the introduction by the Company of a permanent night shift.
3. The Union, on behalf of the workers concerned, served a claim
on the Company for the payment to each worker of one and a half
times the annual loss by way of compensation for the loss of the
overtime earnings. The Company rejected the claim and as no
agreement could be reached at local level the matter was referred
to a Rights Commissioner who, having investigated the dispute,
issued the following recommendation:
"The loss of such substantial earnings would have a severe
impact on the living standards of the four employees unless
they are cushioned in some way against the unexpected drop
in income and their frustrated expectations. Determination
of the amount must be tempered with the considerations that
the overtime was voluntary and that the Company has taken on
two extra people.
I am therefore recommending that each be compensated with a
sum equal to half his annual loss."
The Company appealed the Recommendation, under Section 13(9) of
the Industrial Relations Act, 1969, to the Labour Court. The
Court heard the appeal on 8th December, 1986.
Company's arguments:
4. (a) Due to the introduction of an extra shift the working
of the overtime in question is no longer necessary. It
is a condition of employment which allows the Company
to introduce shift work therefore, the consequences
arising from shift working must be accepted.
(b) Overtime working is at the discretion of the Company
and voluntary to the individual.
(c) The Company has employed two extra workers at a cost in
excess of #21,000. The cost to the Company of
conceding the Union's claim would add a further #21,000
to Company costs. Such additional costs are
unreasonable especially when regard is had to the fact
that when the overtime was worked it was paid for at
the premium rates.
(d) It is an established principle that compensation is not
paid in respect of the loss of voluntary overtime
working and this principle has been upheld by the Court
in previous Recommendations.
(e) In declining compensation in this case the Company
created employment. The creation of employment is of
prime importance and this was recognised by the Court
in a recent Appeals Decision which states the
following:
"The Court agrees with the Rights Commissioner when
he states 'it would discourage employers from
increasing employment if they had to compensate
existing personnel for yielding up the work for
which the new employee would be engaged.' The
Court considers that this should take precedence
over the other consideration in this case (i.e.
sympathy for the other employee whose income drops)
especially at a time of high unemployment and when
many employees are suffering a reduction in
overtime earnings without compensation as a result
of the recession."
Also the labour movement and the Union concerned in
this claim have supported work sharing in an effort to
create employment. If the Rights Commissioner's
Recommendation in this case is upheld it will have an
adverse affect on employment creation.
(f) Taking all the circumstances involved as outlined by
the Company into consideration, the Company's appeal
against the Rights Commissioner's Recommendation should
be upheld.
Union's arguments:
5. (i) Given the amount of the overtime earnings involved the
loss of same will create serious financial problems for
the workers.
(ii) The Company led the workers to believe that the level
of overtime available would be an on-going thing. On
this basis the workers entered into certain financial
commitments from which they are now not in a position
to extricate themselves.
(iii) The question of whether the overtime was voluntary or
compulsory was never an issue as the workers always
made themselves available to work the extra hours, or
ensured that there was some one else available to do
this work, often at great inconvenience to themselves.
(iv) The Company is in a strong financial situation and is
therefore, in a position to concede the Rights
Commissioner's award.
(v) Even allowing for the employment of an extra worker by
the Company, the savings arising from the
discontinuance of the overtime working in question is
considerable.
(vi) The Court in a number of recommendations (details
supplied to the Court) has recommended concession of
claims of this nature.
(vii) The level of compensation awarded by the Rights
Commissioner, which the Union considers is relatively
poor in the circumstances, should be conceded by the
Company.
DECISION:
6. The Court, having considered the submissions made by the
parties, does not find grounds for altering the Rights
Commissioner's Recommendation which it upholds.
The Court so decides.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
_________________________
Deputy Chairman.
19th January, 1987
T.McC./J.C.