Labour Court Database __________________________________________________________________________________ File Number: CD90279 Case Number: LCR12964 Section / Act: S67 Parties: BUS EIREANN - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Claim by the Union concerning annual leave entitlement for two engineering operatives and one mechanic who are attached to the Company's garage in Tralee.
Recommendation:
5. On the basis of the evidence submitted the Court is satisfied
that the Company have not altered their method of calculating
Holiday Pay and that they have also acted in accordance with the
terms of the Holiday (Employees) Act, 1973.
The Court accordingly does not recommend concession of the Union's
claim.
Division: Ms Owens Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
CD90279 RECOMMENDATION NO. LCR12964
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: BUS EIREANN
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Claim by the Union concerning annual leave entitlement for two
engineering operatives and one mechanic who are attached to the
Company's garage in Tralee.
BACKGROUND:
2. One of the engineering operatives concerned was due to retire
in June, 1990. In the latter half of 1989, he was absent due to
sick leave, for approximately 26 weeks. The Company reduced his
annual leave entitlement in accordance with the terms of the
Holidays (Employees) Act 1973, on the grounds that he had not
worked a minimum of 1400 hours in the period 1 April/31 March
preceeding the leave year. The issue which was discussed with the
Union and management was not acceptable to the Union. It resulted
in all maintenance workers withdrawing labour on 24th April 1990
and with a sit-in in the canteen on that day. Pickets were placed
on the garage on 25th April 1990, over the question of payment for
time not worked. The industrial action continued until the
evening of 27th April, 1990, when agreement was reached to refer
the matter of payment to a Rights Commissioner for investigation.
The question of annual leave entitlement for the other two workers
concerned arose during the discussions about leave entitlement for
the worker who was due to retire. As the annual leave issue was
not resolved at local level it was referred to the conciliation
service of the Labour Court and was the subject of a conciliation
conference on 11th May, 1990. No agreement was reached and the
Union requested a full Court hearing. The Company agreed and the
Court investigated the dispute in Tralee on 25th July, 1990.
UNION'S ARGUMENTS:
3. 1. It is accepted that the Holidays (Employees) Act, 1973
lays down minimum desirable standards but they should not be
accepted as absolute maxima. In many aspects the three
workers should qualify for full leave entitlement. Under
Section 3(2) of the Act, they have twelve months service.
Under Section 5(A) of the Act, where there are eight or more
qualifying months of service annual leave shall include an
unbroken period equivalent to two working weeks. If the
Company's position is upheld this is not possible. Under
Section 2(B)(1) of the Act in relation to public holidays,
time off allowed under the Act is regarded as time worked.
2. Labour Court recommendation No. 6654 of 13th October 1981,
recommends that workers on sick leave should receive full
holiday pay.
3. One of the workers received annual leave over and above
the statutory entitlement during a protracted period of
illness in 1974. In the period 1st April, 1974 to 19th
November, 1976 he accrued 35 days annual leave under a strict
interpretation of the Act. However, on resuming work he
received payment of #223.57, in lieu of holiday pay and in
addition he was allowed 43 days annual leave. This
demonstrates that the period of illness in 1974 did not affect
the worker's annual leave entitlement.
4. The Company are allowing 12 days annual leave to one
worker on the grounds that he only worked 1,377 hours in the
qualifying period. They are reducing the other two workers
entitlement accordingly as they had only worked 1085 hours and
1287 hours in the qualifying year. The Company are in breach
of custom and practice which has always existed over the
years.
COMPANY'S ARGUMENTS:
4. 1. The engineering operative who retired in June, 1990 did
not receive full annual leave entitlement in the period 1974
to 1976 when less than 1400 hours were worked in those
particular years. A payment made to the worker at that time
was in respect of extended sickness benefit in the period of
his absence and was not to compensate for annual leave
entitlement.
2. The Company is not in breach of any legislation or
agreement with the Union in applying the formula for less than
full time attendance. The formula has been applied over the
years throughout the whole Company. The custom and practice
in the Company since the 1973 Holidays Employees Act was
implemented has been to grant pro-rata annual leave
entitlement for less than 1400 hours attendance.
4. 3. Labour Court Recommendation No. 6654 of 13th October, 1981
is not a precedent for the case under investigation. In that
particular case there was a practice of granting full annual
leave entitlement irrespective of attendance. The Company
tried to change the arrangement. This is not the situation in
Bus Eireann.
RECOMMENDATION:
5. On the basis of the evidence submitted the Court is satisfied
that the Company have not altered their method of calculating
Holiday Pay and that they have also acted in accordance with the
terms of the Holiday (Employees) Act, 1973.
The Court accordingly does not recommend concession of the Union's
claim.
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Signed on behalf of the Labour Court,
Evelyn Owens
___31st___July,____1990. ___________________
A. McG. / M. F. Deputy Chairman