Labour Court Database __________________________________________________________________________________ File Number: CD87858 Case Number: AD882 Section / Act: S13(9) Parties: W. J. DWAN & SONS LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal, by the Company, against a Rights Commissioner's Recommendation concerning guaranteed overtime.
Recommendation:
7. Having regard to the terms of the Agreement of April, 1987 the
Court is of the opinion that the Rights Commissioner's
Recommendation is correct and should stand. The Court so decides.
Division: Mr O'Connell Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD87858 APPEAL DECISION NO. AD288
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: W. J. DWAN & SONS 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 concerning guaranteed overtime.
BACKGROUND:
2. The Company reached agreement with the Union on 13th April,
1987 concerning rationalisation. As a result of the
rationalisation the Company had three vacancies for permanent
drivers/helpers. The Company accepted three workers, who had been
"casuals" at the depot, for the permanent positions. In July,
1987 the Union claimed that the three workers should be paid 14
hours guaranteed overtime which amounted to approximately #70
gross per week. The guaranteed overtime was paid to permanent
transport workers. The Company rejected the Union's claim mainly
on the grounds that it had informed the Union in April, 1987 of
its intention to buy out the guaranteed overtime.
3. No agreement was reached through local negotiations and the
matter was referred to a Rights Commissioner. On 20th October,
1987 the Rights Commissioner issued his recommendation as follows:
"........I recommend that the Company extend to the workers
concerned the facility of a guarantee of overtime equivalent
to that enjoyed by the other permanent employees. I further
recommend that this guarantee be applicable to the three men
concerned effective from the 1st July, 1987. As rider I
would also recommend that should the Company seek to buy out
this guarantee of overtime with the entire permanent group
employees in the transport distribution area of the Dublin
operation then due account should be made by both parties of
the duration of time in which employee has enjoyed this
facility".
(The workers concerned were named in the Rights Commissioner's
Recommendation).
4. On 11th November, 1987 the Company appealed the Rights
Commissioner's Recommendation to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. The Court heard the
appeal on 14th December, 1987.
COMPANY'S ARGUMENTS:
5. 1. The Company had two principal objections to the Rights
Commissioner's Recommendation. Firstly, the Company objected
to the right to guaranteed overtime. Secondly, substantial
retrospection was involved in the recommendation where
payment would have had to be made for hours not even worked.
The recommendation would have compounded the problem, rather
than resolving a difficulty which had been accepted by both
parties should be eliminated.
2. The Company's clearly stated intention was to eliminate
guaranteed overtime by way of buy-out for existing permanent
workers. Therefore, it is obvious it was never intended to
extend an entitlement to guaranteed overtime.
3. The three workers concerned, as "casual" workers, had no
guarantee of overtime. It is not reasonable to expect the
Company to pay them guaranteed overtime.
4. It is clear from details of overtime hours worked at the
Dublin depot from 8th May, 1987 to 27th November, 1987 that
the actual number of hours overtime worked was substantially
less than was, or would have been, paid under the guaranteed
overtime scheme. Because of this the Company wished to
eliminate guaranteed overtime and would not continue or
extend the practice.
5. It is clear that the agreement referred to people who
already enjoyed the guaranteed overtime. The Company is not
prepared to concede it to anybody else. It would not be
logical to extend the guarantee to an additional three
workers while attempting to negotiate its buy-out.
6. Guaranteed overtime is not the norm in the Company's
branches countrywide. The Company was determined to
eliminate it as its retention creates a major anomaly in
respect of pay rates for drivers/helpers as well as being a
payment for hours not worked.
7. The three people concerned in this claim were appointed
to permanent posts on April 13th, 1987. Their appointment
took place when the re-organisation agreement had been
concluded. This agreement included a commitment to eliminate
guaranteed overtime. Therefore, the employees in the Dublin
Depot had, as part of the Company voted to accept the
re-organisation package, including the provision in section
2, paragraph 1.5. to eliminate guaranteed overtime.
5. 8. Guaranteed overtime is exceptional rather than the rule,
and had the Company wished to make an exception of these men,
it would have said so in making their appointments. The
Company did not offer guaranteed overtime on their
appointment and this was confirmed as its intention, at a
meeting with the Union, on July 7th, 1987.
9. Part of the objective of the survival plan, which was
agreed with the Union, was to establish good industrial
relations and good work practices. This it was hoped would
lead to more secure employment in the Company. As a result a
whole range of work practices were changed and documented.
The elimination of guaranteed overtime was one such practice
was finally agreed as per Section 2 paragraph 1.5 of the
plan.
10. The agreement reached on 13th April, 1987 was a survival
plan for the Company. The Company could have gone out of
business had agreement not been reached on this plan. The
Company is still trading at a loss and cannot consider
additional ongoing costs.
UNION'S ARGUMENTS:
6. 1. The system of guaranteed overtime has been in place in
the Dublin depot for a number of years. It relates to
permanent workers at the depot.
2. The guaranteed overtime payments were conceded in
response to the Union's efforts to improve the basic rate of
pay. The earnings of permanent workers in the Dublin depot
are lower than the earnings of comparable workers in Cantrell
& Cochrane in Dublin. It should be noted that the Company
was taken over by Cantrell & Cochrane in 1987.
3. The availability of enhanced earnings was an incentive to
pursue a permanent position.
4. The workers concerned should enjoy the same
arrangements/earnings as the permanent group which they have
joined.
5. While recognising that a reduction or elimination of
overtime would be sought in the future at no stage was it put
to the Union that existing conditions of permanent jobs at
the Dublin depot would be altered. The Union understood that
existing guaranteed payments would be available to permanent
workers, not to do so would be to alter existing agreements
without consultation or acceptance with the Union.
6. 6. Concession of the claim would not interfere with the
Company's right to seek to eliminate guaranteed overtime.
The Rights Commissioner took account of the Union's
flexibility in this regard in his recommendation by attaching
conditions in the form of a later starting date for its
introduction and a directive to both sides to acknowledge
this in the event of any future buy out.
DECISION:
7. Having regard to the terms of the Agreement of April, 1987 the
Court is of the opinion that the Rights Commissioner's
Recommendation is correct and should stand. The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
___11th___January,___1988. ___________________
T. O'M. / M. F. Deputy Chairman