Labour Court Database __________________________________________________________________________________ File Number: CD88485 Case Number: AD8851 Section / Act: S13(9) Parties: JOHNSON & JOHNSON (IRELAND) LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. BC 149/88 concerning compensation for loss of overtime earnings, for one worker.
Recommendation:
5. In this case the Company has appealed a Rights Commissioner's
Recommendation on the grounds that compensation for loss of
overtime earnings is not justified in the circumstances of this
case. It is noted by the Court that the following facts are not
in dispute:-
(a) The worker did work a considerable amount of
overtime,
(b) The worker was paid for this overtime even though
there was no obligation on the Company to do so,
(c) The Company now wishes to contain the amount of
overtime within a budget limit of £4,500 in 1988
applicable to the worker.
(d) The Company acknowledges that some overtime will be
required even though the objective is to ultimately
eliminate it.
The Court notes that the Rights Commissioner's Recommendation that
the worker work the revised hours required by the Company has now
been accepted by the Union. The Court is satisfied that as a
result of the revised hours, the worker will suffer a considerable
loss of earnings, and takes the view that he should receive some
compensation for that loss.
Accordingly, the Court rejects the Company's appeal. On the basis
of the projected loss of overtime, considered in the context of
earnings over the past four years, the Court assesses the amount
of compensation as £2,000. The Court so decides.
Division: Ms Owens Mr Heffernan Mr O'Murchu
Text of Document__________________________________________________________________
CD88485 APPEAL DECISION AD5188
INDUSTRIAL RELATIONS ACT, 1969
SECTION 13(9)
PARTIES: JOHNSON & JOHNSON (IRELAND) LIMITED
AND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. BC 149/88 concerning compensation for loss of
overtime earnings, for one worker.
BACKGROUND:
2. The worker concerned who is a transport manager in the Company
works from 8 a.m. to 3.45 p.m. with half an hour lunch break.
This arrangement came about as a result of LCR8045, which in 1983
recommended that the Company reduce the working week to 36¼ hours,
for eight workers. The worker commenced working overtime when as
a result of a reorganisation in the Company two employees who
worked for him were removed from his area of responsibility. The
level of overtime has increased over the years and for 1987/1988
he received nine thousand pounds in overtime payments. Because of
a change in the operational requirements the Company now wishes
the worker to work from 9 a.m. to 5 p.m. with a lunch break of
forty five minutes. This new working time will significantly
reduce the amount of overtime available to the worker. The Union
is objecting to the change on the grounds that the restructuring
of the worker's hours would result in a considerable financial
loss to the worker. As no agreement was reached in discussions at
local level the dispute was referred to a Rights Commissioner for
investigation and recommendation. In June, 1988 the Rights
Commissioner issued his recommendation as follows:-
"...I recommend that the worker accepts the new working
hours proposed by management. I further recommend
that both parties, management and trade union, sit
down together and negotiate an acceptable sum in
compensation for the worker on account of the
projected loss of income arising from this sharp
reduction in overtime earnings."
(The worker was mentioned by name in the Rights Commissioner's
Recommendation.
The Company rejected the Rights Commissioner's recommendation and
on the 28th June, 1988, appealed it to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. A Labour
Court hearing took place on the 12th August, 1988.
COMPANY'S ARGUMENTS:
3. 1. As a result of the circumstances which arose because of
the Labour Court Recommendation in 1983, the Company was
persuaded at that time to tailor the hours of attendance for
the worker among others - to suit his personal circumstances
rather than the Company's needs. The Company was agreeable to
the employee's working these hours subject to operational
requirements. Operational requirements have changed to the
point where the range of contacts with which the worker deals
operates in the 9.00 a.m. to 5.00 p.m. day. His supervisory
responsibilities have greatly altered over the period, the
data processing assistance available has improved
significantly and the mixture of own van/contractors used to
move the Company's goods has changed radically. He is no
longer a supervisor heavily involved in the physical
organisation of the work but has become the planner and
co-ordinator of the transport operation to a much greater
extent. The physical organisation of the work has been
decoupled from him and can operate under effective supervision
without his attendance at all times.
2. At the time of the employee's first appointment to a
senior position in 1966, a condition of his appointment was
the non-payment of overtime, but that he would be expected to
supervise overtime working if necessary. If the time worked
became excessive a time-in-lieu arrangement would operate on
an ad-hoc basis. The employee did not work overtime to any
great extent until a reorganisation took place in 1983. Many
of the changes effected in 1983 were designed to make the
situation more manageable and cost effective. The employee
has been doing overtime since then as he deemed necessary.
The level of overtime has grown each year. It is essentially
unsupervised and in the last three years growing concern has
been expressed about the expense involved. The employee is
the only member of management who is being paid overtime,
whereas others have to organise and dispose of their work
without overtime payment.
3. The Company believes that overtime of an unsupervised
nature by a manager removes the incentive to keep the working
day as efficient as possible. The overtime has escalated to
an unacceptable level, despite the fact that the Company had
made this point on a number of occasions. The Company has
decided that the overtime budget be contained within the limit
of £4,500 for 1988, and the hours of attendance now proposed
by the Company will have the effect of reducing the amount of
overtime worked by the employee. The overtime was ad-hoc in
its nature and decisions about when it has worked were made by
the employee.
3. 4. The Company rejected the Rights Commissioner's
Recommendation because he recommended compensation in the
circumstances of the case. The overtime was not rostered,
regular or guaranteed. It was being worked against the behest
of the Company rather than at it. It is not being completely
eliminated but being brought under control and paid for
overtime is not the norm among the management group.
UNION'S ARGUMENTS:
4. 1. The Union has acceded to the Company's wishes with regard
to the question of the employee's working hours, and is
surprised at the Company's refusal to consider the question of
compensation as recommended by the Rights Commissioner. The
Union is of the opinion that this matter should be concluded
before the new hours come into operation. The Union feels
that if the Company is allowed to put the new hours into
effect that it would not be disposed to negotiate on the
matter of compensation for loss of earnings.
2. The employee's starting-time with the Company has been
8.00 a.m. for the past thirty two years. To expect him to
agree to change the pattern of a lifetime and impose the new
starting-hours on him is grossly unfair. Yet when the Rights
Commissioner found against the worker in the matter of
starting-time, the employee accepted it in a disciplined way.
Despite the habit of early-starting over the years the
employee agreed to make the change. The Company states that
the employee as a manager should not have been paid for
overtime worked, and that therefore he should not be
compensated for something he was not entitled to in the first
place. The Union finds this argument specious, as other
companies pay people for services rendered, and this Company
paid the employee for his services, which included overtime
payments. The Company removed two people from the employee's
area of responsibility in 1983 and must surely have been aware
that with the reduction in staff the employee would be obliged
to do extra work.
3. The Rights Commissioner noted in his findings that the
employee was allowed to deviate from the pattern applicable
elsewhere in the plant and that a change to the new
arrangement would give rise to a substantial loss of income to
the employee and that negotiations for "an acceptable sum in
compensation" should be undertaken by the two sides. Details
of the projected loss of overtime have been supplied to the
Court, and the Union is seeking compensation on behalf of the
employee for this loss. It is interesting to note that while
the Company claims that if overtime is worked, it is worked
without compensation for a person in the employee's position,
yet at the same time, it has advised the Rights Commissioner
that there is a budget allocation of £4,500 for overtime in
1988.
DECISION:
5. In this case the Company has appealed a Rights Commissioner's
Recommendation on the grounds that compensation for loss of
overtime earnings is not justified in the circumstances of this
case. It is noted by the Court that the following facts are not
in dispute:-
(a) The worker did work a considerable amount of
overtime,
(b) The worker was paid for this overtime even though
there was no obligation on the Company to do so,
(c) The Company now wishes to contain the amount of
overtime within a budget limit of £4,500 in 1988
applicable to the worker.
(d) The Company acknowledges that some overtime will be
required even though the objective is to ultimately
eliminate it.
The Court notes that the Rights Commissioner's Recommendation that
the worker work the revised hours required by the Company has now
been accepted by the Union. The Court is satisfied that as a
result of the revised hours, the worker will suffer a considerable
loss of earnings, and takes the view that he should receive some
compensation for that loss.
Accordingly, the Court rejects the Company's appeal. On the basis
of the projected loss of overtime, considered in the context of
earnings over the past four years, the Court assesses the amount
of compensation as £2,000. The Court so decides.
~
Signed on behalf of the Labour Court,
Evelyn Owens
___24th___August,___1988. ___________________
T. O'D. / M. F. Deputy Chairman