Labour Court Database __________________________________________________________________________________ File Number: CD88948 Case Number: LCR12284 Section / Act: S67 Parties: ABBOTT IRELAND LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS UNION |
Claims concerning: (a) compensation for loss of overtime earnings; and (b) seniority.
Recommendation:
9. Having considered the submissions made by the parties on the
two issues before it the Court recommends as follows.
(a) Loss of Earnings
In the view of the Court it is clear that the employees
concerned have suffered no loss as a result of the
introduction of the new filler and the Court does not
therefore recommend concession of the Union's claim in this
respect.
(b) Seniority
Whilst noting the long and favourable experience of both the
Company and the Union of the operation of the agreement on
seniority in employment it seems to the Court that this may
now require some clarification for the future. In respect of
the particular issue before the Court, having regard to the
particular circumstances of the case the Court is of the
opinion that the Employer's interpretation is correct. The
Court recommends that this should be accepted by the Union.
Division: Mr O'Connell Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD88948 RECOMMENDATION NO. LCR12284
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: ABBOTT IRELAND LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS UNION
SUBJECT:
1. Claims concerning:
(a) compensation for loss of overtime earnings; and
(b) seniority.
GENERAL BACKGROUND:
2. The Union is claiming compensation for two filler operators in
respect of lost weekend overtime earnings and that the seniority
of a temporary worker should be determined by reference to his
first starting date. The Company's position is that the two
filler operators have not suffered a loss of overtime earnings and
that seniority is determined by actual periods of employment
worked. No agreement could be reached at local level and on 20th
June, 1988 the matters were referred to the conciliation service
of the Labour Court. A conciliation conference was held on 29th
September, 1988 at which no progress was made and on 15th
December, 1988 the matters were referred to the Labour Court for
investigation and recommendation. The Court investigated the
matters on 24th January, 1989.
Claim (a) compensation for loss of overtime earnings
BACKGROUND:
3. In January, 1986 a new filler machine was installed in the
packing area. The Union on behalf of the two filler operators
claims that as a result of this they suffered a loss in regular
weekend overtime and should be compensated. The issue was first
raised in 1986 and it was agreed that due to the reduction in
plant production the claim would not be proceeded with at that
time. The issue was raised again in 1987 and 1988. The Company's
position is that the workers have not suffered a loss in overtime
earnings
UNION'S ARGUMENTS:
4. 1. Week-end overtime is paid for at a premium rate of 2T.
Prior to the installation of the new filler machine the
workers were obliged to work whatever hours on Saturday and
Sunday were necessary to ensure maximum hygiene and production
standards. The workers had to commit themselves to this
fixed, regular overtime and it was an ongoing part of their
earnings for many years. With the installation of the new
machine all this week-end overtime has ceased and overtime at
week-ends has only been worked occasionally when
filling/packing continues into Saturdays.
2. The loss of this overtime equates to #138.22 gross, or #80
nett per weekend based on sixteen hours at double time. The
workers are now in the position whereby instead of receiving
this regular substantial overtime, they are dependent on
occasional periods of overtime. Approximately twelve months
ago when the Company realised that this claim was proceeding
to the Court, other overtime was made available to the
workers. This has distorted the facts of the situation and is
liable to be removed after the investigation. The workers
should each receive #1,000 compensation for loss of earnings.
COMPANY'S ARGUMENTS:
5. 1. The workers concerned have not suffered a loss in overtime
earnings (details supplied to the Court). In the period 1st
April, 1986 to 31st March, 1987 production was reduced by
almost 50% and for most of this time the plant was only
operating three days a week. As a result there was a
reduction in overtime for all workers in the plant. The
workers are claiming for loss of overtime earnings when in
fact they actually worked more overtime in 1987/88 (the period
for which they claim they lost overtime) than in 1985/86 or
1984/85. Originally six workers claimed compensation, however
four have accepted that there was no basis for the claim.
2. Overtime is not guaranteed by the Company and this concept
is contained in the Union/Company agreement (details supplied
to the Court). There is no basis for compensation in this
case and concession of this claim would have serious
repercussive effects in relation to other groups of workers.
In addition the current agreement with the Union which ends in
June, 1990 states that there will be no further cost
increasing claims (details supplied to the Court).
(b) Seniority
BACKGROUND:
6. The worker concerned was employed by the Company on a
temporary basis from 20th July, 1987 to 4th September, 1987 and
from 28th September, 1987 to 25th December, 1987. Further
temporary vacancies arose in January, 1988 but this worker was not
employed. The Union referred his case to a Rights Commissioner
who recommended that the Union accept the Company's right of
selection and that the Company offer him some further temporary
employment. The Company appealed this recommendation to the
Labour Court which upheld the Rights Commissioner's recommendation
(AD2788 of 13th May, 1988 refers). This was accepted by both
parties and the worker was employed on a temporary basis from 13th
June to 26th August, 1988. In May, 1988 the Union raised the
matter of this worker's seniority and claimed that the order of
seniority should be determined by reference to the first starting
date of employment. The Company's position is that service is
based on actual periods of employment worked.
UNION'S ARGUMENTS:
7. 1. The current works agreement states that in the context of
a cessation of employment or lay off that "all things being
equal, length of service shall decide the order of lay off
etc." This clause does not define precisely how length of
service is actually determined. However, even the Company has
agreed that it is the worker's date of commencement of
employment which is used for determining service. Subsequent
periods of lay off would not alter that starting date.
Legislation governing redundancy and minimum notice also
stipulates the same criteria for calculating service. The
only other matter which would have a bearing on the length of
service accredited to a worker is a period of lay off, which
would normally be discounted.
2. The Company has already unfairly denied this worker
several months service and its position now is that length of
service consists only of time actually worked. The Union
accepts that a worker who leaves of their own wishes, or does
not return from lay off when requested cannot expect to retain
the original starting date for the calculation of service.
However this worker hopes to obtain full time employment with
the Company and in recent years virtually all permanent
positions have been filled from available temporary workers on
a seniority basis. If the Company's position on seniority is
taken this worker will drop at least two places on the
seniority list, thereby hindering his chances of obtaining
regular periods of temporary work or a permanent position.
COMPANY'S ARGUMENTS:
8. 1. The only reference to seniority in the joint Company/Union
agreement is on the issue of lay-offs and this clearly states
that seniority is regarded as length of service. The
agreement is also quite specific that the Company has the
right to recruit suitable workers from any source. This is
also clearly set out in the Labour court's previous decision
on this matter (AD2788). Therefore, the Company has the sole
right of recruitment and it is only in a situation where
everything else is equal that seniority becomes an issue.
2. The method of applying service where relevant has always
been based on the length of service of the worker as
determined by the number of weeks or months of actual service.
The Union's interpretation as well as being contrary to past
practice and the joint Company/Union agreement implies that a
worker with short service e.g. three months, should be offered
a permanent position before a worker with twelve months
service but with a later starting date. It is logical that
seniority should be based on the amount of time worked, not
starting dates.
RECOMMENDATION:
9. Having considered the submissions made by the parties on the
two issues before it the Court recommends as follows.
(a) Loss of Earnings
In the view of the Court it is clear that the employees
concerned have suffered no loss as a result of the
introduction of the new filler and the Court does not
therefore recommend concession of the Union's claim in this
respect.
(b) Seniority
Whilst noting the long and favourable experience of both the
Company and the Union of the operation of the agreement on
seniority in employment it seems to the Court that this may
now require some clarification for the future. In respect of
the particular issue before the Court, having regard to the
particular circumstances of the case the Court is of the
opinion that the Employer's interpretation is correct. The
Court recommends that this should be accepted by the Union.
~
Signed on behalf of the Labour Court
John O'Connell
_______________________
23rd February, 1989 Deputy Chairman.
U.M./J.C.