Labour Court Database __________________________________________________________________________________ File Number: CD88578 Case Number: AD8861 Section / Act: S13(9) Parties: CLARE COUNTY COUNCIL - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Council against a Rights Commissioner's Recommendation concerning compensation for loss of overtime for one worker.
Recommendation:
6. The Court does not find adequate grounds for overturning the
Rights Commissioner's recommendation and decides that it be
upheld.
Division: CHAIRMAN Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD88578 APPEAL DECISION NO. AD6188
INDUSTRIAL RELATIONS ACT, 1969
SECTION 13(9)
PARTIES: CLARE COUNTY COUNCIL
AND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Council against a Rights Commissioner's
Recommendation concerning compensation for loss of overtime for
one worker.
BACKGROUND:
2. The worker has been employed by the Clare County Council since
1966. His present basic wage is #164.45 per week. In 1974, the
worker was the driver assigned to drive the County Council's
suction sweeper while it was engaged in street cleaning, for Ennis
Urban District Council (U.D.C.) on a contract basis. The weekend
work, which the Union says is regular and rostered overtime,
consisted of a payment of three hours at double time and three
hours at time plus one half. On 1st July, 1987, Ennis U.D.C.
withdrew the contract it had with the County Council and made its
own arrangements for street cleaning. The Union, on behalf of the
worker concerned, sought compensation for loss of earnings. The
Council rejected the claim and the matter was referred to the
Rights Commissioner who recommended as follows on 21st June,
1988:-
" RECOMMENDATION
It is correct to state that the Labour Court has
rejected some claims for compensation for loss of
earnings. It is equally true that the Court has in
the past year also recommended compensation where
the overtime lost has been "regular, rostered" and
of long standing. Equally it has denied
compensation specifically because all those three
elements were not present. I take the view that
all three elements are present in this case.
Furthermore the loss of this overtime is not
related to the Government cutbacks in Clare County
Council per se, but specifically related to the
loss of a contract with a client user.
The Claimant's average overtime in the years ending
5.4.85, 5.4.86 and 5.4.87 was #5,276 p.a. His
earnings in the year to 5.4.88 were #3,488.
Therefore his notional loss was #1,788 (#5,276 -
#3,488). However the total overtime for all
employees in the Council in 1987 was 5.2% of basic
pay. This dropped to 4% in 1988 a drop of 1.2%
which represents a reduction of 23% on last year
(1.2 x 100 5.2). I cannot in equity compensate
the claimant for his share of this loss, so his
award of #1,788 or once the annual loss, is reduced
by 23% (#411) to #1,377.
I therefore recommend that the claimant receives
the sum of #1,377 in full and final settlement of
all his claims arising out of the loss of his
overtime which was regular and rostered over 14
years and such loss, was not connected directly
with Government cutbacks in Clare County Council."
3. The Council rejected the Rights Commissioner's Recommendation
and appealed it to the Labour Court on 19th July, 1988, under
Section 13(9) of the Industrial Relations Act, 1969. The Court
heard the appeal on 21st September, 1988, in Limerick.
COUNCIL'S ARGUMENTS:
4. 1. Ennis U.D.C. is a separate local authority and an employer
in its own right and as such is entitled to carry out its work
in whatever manner it sees fit. On 1st July, 1987, Ennis
U.D.C. withdrew the contract it had with the Clare County
Council and made its own arrangements for street cleaning.
This was done for economic reasons as Ennis U.D.C., like the
County Council, are also working within a very tight budget
because of the cut backs. Therefore, as a result of this new
arrangement, the need for the worker to work overtime on the
suction sweeper no longer existed.
2. The Council does not propose to create fictitious overtime
in order to boost the worker's pay packets. Overtime is
worked only when it is necessary to do work which cannot be
done during normal working hours and is never worked for the
purpose of supplementing a worker's income. Working overtime
is not guaranteed in any employee's conditions of employment
and the Council is entitled to discontinue overtime working at
any time.
3. The Council does not consider that the overtime for the
worker was regular and rostered at week-ends. It was only
rostered for as long as Ennis U.D.C. were willing to employ
the Council to do this work and this contract could be
withdrawn at any time. The street cleaning was not always
done on Saturday and Sunday and it was only for the period
June, 1985 to July, 1987 that street cleaning was done on both
days. During the period September to December 1985, street
cleaning again reverted to Sundays only.
4. 4. The worker has fared better than the majority of other
Council workers by earning in excess of 40% of his basic wage
in overtime during the year ended 5th April, 1988.
5. Several recent Labour Court Recommendations regarding
claims for compensation for the loss of overtime have found
such claims could not be justified (details supplied to the
Court).
UNION'S ARGUMENTS:
5. 1. The recommendation which was issued by the Rights
Commissioner on the 21st June, 1988, clearly states that the
Court has in the past year recommended compensation for loss
of overtime where three elements were present, i.e. regular,
rostered and long standing. Surely, as the worker was doing
this work for 14 years on a regular basis without question,
then he should be entitled to compensation as recommended by
the Rights Commissioner.
2. The overtime was on a regular and rostered basis and the
loss incurred by the worker concerned should now be made good
by the Council. The Council have stated that they will not
pay any compensation and are not in a position to create
fictitious overtime. This work is anything but fictitious as
it is still being carried out on the same regular basis,
although not by the worker concerned.
3. This weekend work had become a part of the worker's normal
working week - he just reported for work at the weekends as he
would for his normal duties and was paid the proper overtime
rates for the job without question.
DECISION:
6. The Court does not find adequate grounds for overturning the
Rights Commissioner's recommendation and decides that it be
upheld.
~
Signed on behalf of the Labour Court.
John M. Horgan
___11th___October,__1988. ___________________
T. McC. / M. F. Chairman