Labour Court Database __________________________________________________________________________________ File Number: CD8737 Case Number: AD8742 Section / Act: S13(9) Parties: IRISH ESTATES (MANAGEMENT) LTD - and - ITGWU |
Appeal, by the Union on behalf of two workers, against Rights Commissioner's Recommendation No. B.C. 96/86, concerning compensation for loss of earnings.
Recommendation:
5. The Court, having considered the submissions made by the
parties, has noted the unsatisfactory communication by the
Company to the claimants of the new arrangements, both at the time
of their appointment and also when the changes were actually
proposed.
During the hearing the Company confirmed that the standard working
hours under the new arrangements will be 19 and 23 hours, in
alternate weeks. The Company also confirmed that overtime rates
will be applicable to all hours worked in excess of the standard
hours.
In all the circumstances of the case, the Court considers that the
payment to each of the claimants, recommended by the Rights
Commissioner should be amended to #700. The new arrangement
should be introduced without further delay.
The Court so decides.
Division: Mr Fitzgerald Mr Heffernan Mr Walsh
Text of Document__________________________________________________________________
CD8737 THE LABOUR COURT AD4287
CC87357 INDUSTRIAL RELATIONS ACT, 1969
Section 13(9) APPEAL DECISION NO. 42 OF 1987
PARTIES: IRISH ESTATES (MANAGEMENT) LIMITED
(Represented by the Federated Union of Employers)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal, by the Union on behalf of two workers, against Rights
Commissioner's Recommendation No. B.C. 96/86, concerning
compensation for loss of earnings.
Background:
2. The workers concerned commenced employment with the Company in
the first half of 1985. Both were employed on evenings in a
car-park kiosk. Hours of work varied between 40 and 50 hours per
week. They also worked Saturdays on a split shift basis. The
Company announced its decision to discontinue the temporary
practice of providing two workers on the evening roster. This
reduction in worker presence was made possible through the
provision of a special security kiosk which, it was reckoned,
would eliminate any real risk of robbery taking place. Since this
reduction in attendance hours for each of the workers would
inevitably result in a loss of earnings, the Union, on behalf of
the workers, referred the matter to a Rights Commissioner for
investigation. On 30th September, 1986, the Rights Commissioner
issued the following findings and recommendation:-
- Findings
Having investigated the matter and given full and careful
consideration to the points made and developed in each
submission I have come to the following conclusions:-
(1) the employees concerned have become accustomed for over
a year to a full weeks work.
(2) I can understand the Company's belief that this double
presence is no longer necessary due to the provisions of
a security kiosk.
(3) The employees concerned will suffer a loss of income of
approximately one third of that to which they were
previously accustomed. I must accept what management
says about the evening opening of the car park as being
a pretty marginal exercise.
(4) The Company could have approached the matter on the
basis of having only one attendant present in the
evening and this would of course have introduced a
circumstances of redundancy where the redundant
attendant would have very limited legal entitlement.
(5) On the other hand I must address the fact that each of
the two men in question will suffer a considerable drop
in income.
(6) It is not at all clear what was the exact understanding
reached between the claimants and the Company at the
time of their appointment in the matter of the nature of
the jobs being part-time/temporary/full-time/permanent.
- Recommendation
In the light of the above I recommend that Irish Estates
(Management) Limited pay to the workers concerned the sum of
#400 each by way of compensation for the loss of each of the
earnings and that the claimants accept this sum in full and
final settlement of this particular claim.
(Both workers were mentioned by name in the Rights
Commissioner's recommendation).
The Union rejected the Rights Commissioner's recommendation and on
23rd December, 1986, after local level discussions, it was
referred to the conciliation service of the Labour Court, in an
attempt to resolve the matter. As no progress was made at a
conciliation conference on 3rd April, 1987, the Rights
Commissioner's recommendation was appealed, by the Union, to the
Labour Court, under Section 13(9) of the Industrial Relations Act,
1969. A Court hearing took place on 7th May, 1987.
Union's arguments:
3. (i) The Union contends that the Company's plan to
introduce a one-man operation in the car-park is
impractical and fraught with dangers for the men
involved. The Company has altered the cash kiosk to
the extent that the man working in it will be totally
alone, locked in with no access from the outside for
up to six hours. During this period, the man could
fall ill and be unable to open the door. He has no
proper meal break away from his immediate working
environment and is expected to use the toilet
facilities in the kiosk.
(ii) The Union believes that the Company should reconsider
its' decision in respect of the one-man operation, as
the advantages that it may bring will be minimal, as
there are flaws, particularly in the security context.
(iii) Operating the new kiosk, with the hours proposed by
the Company, will cause a serious loss of earnings for
the workers concerned. At present the workers are
paid overtime for all hours in excess of 40 per week.
The proposed hours will cause a total elimination of
any overtime premium, representing a total elimination
of their earnings potential. The Union do not believe
the size and extent of the loss was dealt with
adequately by the Rights Commissioner.
(iv) The workers concerned have worked in the capacity of
full-time employees and have no wish to see their jobs
re-categorised to those of part-time staff. As a
result of the changed system the workers will suffer
an annualised loss of earnings of between
approximately #4,000 and #6,000. The Union believes a
three year projection is applicable in this instance
considering the vast amount of loss of earnings and
potential earnings involved.
Company's arguments:
4. (a) During the planning and construction of the kiosk, the
Company operated the practice of having two workers on
duty together during the night shift for security
reasons. This was a temporary measure pending
completion of the kiosk. When construction was
complete the Company decided to offer reduced hours to
the two workers concerned rather than make one man
redundant. When the Union was informed of this, they
did not oppose the decision, but came to the Company
seeking compensation for the workers.
(b) The Company believes that, having opted for a decision
which maintains the level of employment, there can be
no justification for paying out compensation.
However, the Company is prepared to honour the Rights
Commissioner's recommendation.
(c) Under the old working system, there were 72 hours per
week available to the two employees concerned. Under
the new working arrangements, the total hours
available per week for the two employees concerned
will be approximately 45 hours on average. The
opportunity for overtime earnings that existed before
will still be available.
DECISION:
5. The Court, having considered the submissions made by the
parties, has noted the unsatisfactory communication by the
Company to the claimants of the new arrangements, both at the time
of their appointment and also when the changes were actually
proposed.
During the hearing the Company confirmed that the standard working
hours under the new arrangements will be 19 and 23 hours, in
alternate weeks. The Company also confirmed that overtime rates
will be applicable to all hours worked in excess of the standard
hours.
In all the circumstances of the case, the Court considers that the
payment to each of the claimants, recommended by the Rights
Commissioner should be amended to #700. The new arrangement
should be introduced without further delay.
The Court so decides.
~
Signed on behalf of the Labour Court
26th May, 1987 Nicholas Fitzgerald
B.O'N./P.W. Deputy Chairman