Labour Court Database __________________________________________________________________________________ File Number: CD8819 Case Number: LCR11759 Section / Act: S67 Parties: GILBEYS OF IRELAND LIMITED - and - FEDERATED WORKERS' UNION OF IRELAND |
Claim by the Union on behalf of a worker for compensation for loss of overtime.
Recommendation:
6. Having considered the submissions made, the Court is of the
opinion that under the terms of the agreement between the parties,
the worker concerned is not entitled to compensation for loss of
right to first choice of overtime. However, having regard to the
circumstances which prevailed in this workers case, the strict
application of the agreement is so harsh as to be inequitable and
the Court recommends that the Company agree to the payment of some
compensation on an "ex gratia" basis.
Division: Mr O'Connell Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD8819 RECOMMENDATION NO. LCR11759
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: GILBEYS OF IRELAND LIMITED
and
FEDERATED WORKERS' UNION OF IRELAND
SUBJECT:
1. Claim by the Union on behalf of a worker for compensation for
loss of overtime.
BACKGROUND:
2. In 1986, the Company and Union, as part of a comprehensive
package, agreed terms for the buy-out of guaranteed overtime in
respect of employees in the bottling hall. The overtime was
bought out at the rate of twice the annual loss according to the
following formula:
- the 1st 200 hours paid to the person who had first call on
the overtime i.e. the person who occupied the job in the
day time, irrespective of the frequency with which the
individual actually worked overtime;
- the balance of the overtime buy out was divided amongst
those who actually worked the overtime relative to the
frequency with which they worked.
3. The worker concerned belongs to the group who deputise for
those who are not available to work overtime in the bottling hall.
The Union maintains that he should have received the 200 hour
payment in addition to the proportionate payment. He was involved
on a regular basis in deputising for cleaning staff and in fact
worked considerably more hours than the holder of one of the
full-time cleaning positions. In the course of the talks the
Company drew the Union's attention to this situation. The Company
sought to pay the 200 hours to the worker concerned, however, this
was rejected by the Union on the grounds that it was not
consistent with the broad terms of the agreement. The Company
acquiesced in this. The Union maintains that it subsequently
became clear that the worker concerned had quite separate and
distinct duties on overtime to the worker he was supposed to be
deputising for and that he in fact had first call on overtime in
the cleaning area in his own right. The Union argued that whilst
there were 4 cleaning jobs on days, there were 5 cleaning jobs on
overtime. This was categorically denied by the Company who
maintained that only 4 cleaning positions existed and that the
worker concerned stood in for absent staff. As agreement could
not be reached locally the matter was referred on 23rd November,
1987, to the conciliation service of the Labour Court. As
agreement could not be reached at a conciliation conference held
on 8th December, 1987, for investigation and recommendation. A
Court hearing took place 24th February, 1988.
UNION'S ARGUMENTS:
4. 1. During the day there were 4 cleaning jobs, however, on
overtime there were 5 cleaning jobs. The worker concerned
worked in the warehouse during the day but had first call on
the 5th cleaning job on overtime. Consequently, the option
put to the Union by the Company regarding the worker concerned
i.e. the 200 hour payment, was a false choice and took no
account of the 5th position. As he had first call on this 5th
position he was entitled to compensation for the 200 hours
first call overtime.
2. The Company disputes this 5th position but the Union
believes any independent analysis of the pattern of work in
the bottling hall will confirm its existence.
3. There are 4 bottling lines, each of which has an allocated
cleaner on overtime. The worker concerned is allocated D line
on overtime. The worker, whom the Company maintain he was
deputising for, was allocated the task of emptying the bins in
to the compactor on overtime when he worked. When he was
absent, someone other than the worker concerned was allocated
his job. This establishes the existence of the 5th position
and the worker's right to first call on overtime.
COMPANY'S ARGUMENTS:
5. 1. The Company agreed a level of compensation, as part of the
overall comprehensive agreement. The compensation was paid in
accordance with the agreement without exception. The
introduction of exceptions some 17 months after the agreement
could jeopardise the compensation agreement and indeed the
overall comprehensive agreement.
2. At the time of the negotiation of the agreement the Union
insisted that there be no exceptions. At that time the
Company was prepared to pay the worker concerned the 200 hours
payment, but the Union would not allow it. How can they now
request it?
3. There were 4 other comprehensive agreements covering the
other areas of craft, clerical, technical and supervisory
areas and security. All of these agreements involve
compensation for loss of overtime. The Company cannot afford
to have these agreements jeopardised either.
5. 4. The Company maintains that there were only 4 cleaning jobs
in the bottling hall and that the worker concerned was
deputising for the worker who did the job during day time.
RECOMMENDATION:
6. Having considered the submissions made, the Court is of the
opinion that under the terms of the agreement between the parties,
the worker concerned is not entitled to compensation for loss of
right to first choice of overtime. However, having regard to the
circumstances which prevailed in this workers case, the strict
application of the agreement is so harsh as to be inequitable and
the Court recommends that the Company agree to the payment of some
compensation on an "ex gratia" basis.
~
Signed on behalf of the Labour Court
John O'Connell
______________________
22nd March, 1988. Deputy Chairman
B.O'N/J.C.