Labour Court Database __________________________________________________________________________________ File Number: CD88660 Case Number: LCR12100 Section / Act: S67 Parties: J. LYONS AND COMPANY (IRELAND) LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Claim for inclusion of average overtime earnings in the calculation of sick pay for factory operatives.
Recommendation:
5. Having considered the submissions made, the Court takes the
view that in the case of the sales staff commission is an integral
part of their pay structure in a way in which overtime, no matter
how regular, is not. The Court therefore does not recommend
concession of this claim, which as it stands is in breach of the
terms of the Programme for National Recovery insofar as it
involves an increase in Company costs.
Division: Mr O'Connell Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD88660 RECOMMENDATION NO. LCR12100
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: J. LYONS AND COMPANY (IRELAND) LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
AND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Claim for inclusion of average overtime earnings in the
calculation of sick pay for factory operatives.
BACKGROUND:
2. The Company operates a sick pay scheme whereby workers have
the same rate of pay whether on sick leave or not. Payment is
made for the first three days of absence. In discussions at local
level which included among other things details of the Company's
sick pay scheme, the Union became aware that van salesmen, were
paid sick pay benefit in relation to their gross pay (basic and
commission) while factory operatives were paid only in relation to
their basic pay. Account was not taken of overtime which the
Union claims is worked on a regular basis by the employees. The
Union argues that regular overtime should be taken into account in
the calculation of sick pay benefit for factory operatives. The
Company was not prepared to concede the Union's claim and as no
agreement could be reached in discussions at local level the
dispute was referred to the Conciliation Service of the Labour
Court on the 2nd August, 1988. A Conciliation Conference was held
on the 12th August, 1988, but no agreement was reached. The
matter was referred to the Labour Court for investigation and
recommendation on the 16th August, 1988. A Court hearing took
place on the 13th October, 1988 - the earliest date suitable to
all parties. Subsequent to the Labour Court hearing
correspondence was received from both parties in relation to the
calculation of van salesmens' pay.
UNION'S ARGUMENTS:
3. 1. An obvious case of discrimination exists when one section
of the workforce is treated less favourably than another in an
important matter such as sick pay. In the case of illness a
worker has to pay doctors' bills plus prescription charges,
which together with the normal week to week cost of living,
means that a person's outgoings are higher when out sick than
when in work. The sick pay scheme as applied to factory
workers only takes into account the difference between social
welfare payments and basic take-home pay and ignores the
regular overtime earnings of the employees therefore
penalising them when out sick. The claim, in reality, only
affects twenty two male employees (as the female workers do
not as a rule work overtime) therefore the cost to the Company
is not excessive.
2. An arrangement exists between male employees and the
Company whereby the work of men who are out sick is covered by
the remaining staff, thereby eliminating the need to carry
spare staff and the cost that this involves. The overtime of
the male operatives is done on a regular basis three to four
nights per week, and consists in the main of work that cannot
be done during the day. The overtime is regular, necessary,
and forms a consistent part of the factory operatives'
earnings. The Company already pays over fifty van
salespersons' their sickness benefit based on gross pay
including commission. The Union believes that an obvious
anomaly exists which can only be corrected by granting the
same conditions of sick benefit to the factory operatives, who
incidentally, have a low percentage rate of absenteeism. The
Company's claim, that the Union is in breach of the Programme
for National Recovery, is not correct. The Union's case is
that an anomaly exists between the sick pay conditions
afforded to van salespersons and factory operatives, and the
terms of the PNR do not prevent it from having this injustice
corrected.
COMPANY'S ARGUMENTS:
4. 1. The Company has rejected the Union's claim because the
terms of the Programme for National Recovery have been
accepted by both sides. The Programme provides that apart
from basic pay, no further cost increasing claims should be
made. In the Company's view this claim submitted by the Union
does have an impact on pay roll costs and consequently should
not be conceded.
4. 2. Present sick pay arrangements within the Company are very
favourable and the level of benefit is based on gross basic
pay. It does not include overtime and the Company believes
that this is a reasonable exclusion and not out of line with
general practice in other similar employments. It should be
noted that the Minister for Social Welfare is at present
engaged in reviewing aspects of the State's disability scheme
with a view to transferring obligations to the employer.
However the precise form of the Minister's proposals are not
yet known.
RECOMMENDATION:
5. Having considered the submissions made, the Court takes the
view that in the case of the sales staff commission is an integral
part of their pay structure in a way in which overtime, no matter
how regular, is not. The Court therefore does not recommend
concession of this claim, which as it stands is in breach of the
terms of the Programme for National Recovery insofar as it
involves an increase in Company costs.
~
Signed on behalf of the Labour Court,
John O'Connell
___5th___December,___1988. ___________________
T. O'D. / M. F. Deputy Chairman