LCR13100

Subject:
Claim by the Union on behalf of approximately 17 workers concerning the application of the 39 hour week.

Recommendation:
5. The Frame-Work Agreement on Hours of Work is specific on the
point that a reduction in hours of work is applicable only to
workers whose working time is 40 hours or more in the week. The
workers at Corcanree do not meet this criteria and therefore do
not qualify for reduced working-time under the Agreement.
Accordingly the Court does not recommend its concession.

The circumstances under which the present 38.75 hours was
introduced at Corcanree were rare enough in industrial relations
terms in as much as time was used in the barter instead of the
more conventional buy-out or other monetary accommodation.

Therefore the net effect of not applying the Frame-Work Agreement
reduction in hours of work is to reduce to a quarter of an hour
the benefit of the 1 1/4 hours per week negotiated with the
workers in the past in return for specific undertakings. The
Court would regard this position as inequitable to the workers
involved and recommends that the parties find an industrial
relations solution that will eliminate the inequity. In the
particular circumstances of the case, the Court does not regard
the Company reliance on "no other cost increasing claims" as
reasonable.

Division: CHAIRMAN Mr Collins Mr Walsh

Text of Document__________________________________________________________________

CD90574 RECOMMENDATION NO. LCR13100

INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67



PARTIES: JAMES MCMAHON LIMITED
(Represented by the Federation of Irish Employers)
and
MARINE PORT AND GENERAL WORKERS' UNION



SUBJECT:
1. Claim by the Union on behalf of approximately 17 workers
concerning the application of the 39 hour week.

BACKGROUND:
2. In September, 1989, the Union lodged a claim for a reduction
in hours of work as provided for under the Framework Agreement on
Hours of Work. The Company has rejected the claim on the grounds
that the workers concerned currently work less then 40 hours per
week and therefore are not covered by the Framework Agreement.
For historical reasons the workers concerned work less than 40
hours per week. The basis for this arises from an agreement with
the unions to lengthen daily lunch breaks by 15 minutes as part of
an agreement to transfer from a central city location to a
location at Corcanree. The additional lunch break was to allow
those who would normally go home for lunch to do so with the
comfort of an additional 15 minutes as compensation for the move
to the outskirts of the city. As a result of the lengthened lunch
break the workers concerned now work 38.75 hours per week. Whilst
the Company has rejected the Union's claim, it has said it is
willing to adjust the hourly rate of pay so that a fair and just
overtime calculation will operate. As agreement could not be
reached locally the matter was referred on 10th April, 1990, to
the conciliation service of the Labour Court. No agreement was
reached at a conciliation conference held on 7th September, 1990,
and the matter was referred on 28th September, 1990, to the Labour
Court for investigation and recommendation. The Court
investigated the dispute on 20th November, 1990, in Limerick.

UNION'S ARGUMENTS:
3. 1. The extra quarter of an hour lunch break is the result
of a separate and independent agreement introduced for the
express purpose of compensating those who had to move for the
extra distance they must travel during lunch break.

3. 2. The workers concerned are paid for a 40 hour week and at
a 40 hour week rate of pay, which means that if a worker is
absent for a day, he is deducted 8 hours pay and not 7.75
hour pay. The Court in Recommendation No. 12829 found in
favour of the unions in a case that dealt with a similar set
of circumstances as this case in that the workers involved
worked a 39.5 hour week because of a separate agreement on the
cashing of cheques.

3. The reduction in the working week should come about in
the form of one hour off finishing time on Friday. The Union
also believes that given the undue delay in dealing with this
matter since the claim was originally lodged, it should be
conceded from 1st January, 1990.

COMPANY'S ARGUMENTS:
4. 1. The hours of work established by agreement and custom
and practice for the workers concerned are 38.75 hours per
week. Accordingly no further reduction in hours is warranted.

2. The Company has fully complied with the spirit and
letter of the Programme for National Recovery. Contained in
the agreement on pay is a clause which states that there
should be no further cost increasing claims served on the
Company for the duration of the agreement.

3. Clause 6 of the Framework Agreement makes no reference
to hours of pay, what it does refer to is the "normal working
week" and provides for a reduction where it is at or above 40
hour per week. The Union's claim is outside the scope of the
agreement. It would also be commercially unrealistic and
potentially damaging if the Company's trading hours were
reduced further.

4. The Union has referred to Labour Court Recommendation
No. 12824. The Company believes that that case is very
different to the current one. Any agreement entered into with
employees to allow them time off to cash cheques is done on
the basis that employees have a statutory right to insist on
cash payment.

5. The Company will not reduce working time as it is not
obliged to. In this case the arrangement to extend lunch
breaks and to effectively reduce working time by an hour and a
quarter per week was done clearly as a working time reduction.
It is the Company's view that the Union's claim is contrary to
the terms of the Framework Agreement and must therefore be
rejected.

RECOMMENDATION:

5. The Frame-Work Agreement on Hours of Work is specific on the
point that a reduction in hours of work is applicable only to
workers whose working time is 40 hours or more in the week. The
workers at Corcanree do not meet this criteria and therefore do
not qualify for reduced working-time under the Agreement.
Accordingly the Court does not recommend its concession.

The circumstances under which the present 38.75 hours was
introduced at Corcanree were rare enough in industrial relations
terms in as much as time was used in the barter instead of the
more conventional buy-out or other monetary accommodation.

Therefore the net effect of not applying the Frame-Work Agreement
reduction in hours of work is to reduce to a quarter of an hour
the benefit of the 1 1/4 hours per week negotiated with the
workers in the past in return for specific undertakings. The
Court would regard this position as inequitable to the workers
involved and recommends that the parties find an industrial
relations solution that will eliminate the inequity. In the
particular circumstances of the case, the Court does not regard
the Company reliance on "no other cost increasing claims" as
reasonable.
~

Signed on behalf of the Labour Court

Kevin Heffernan
5th December, 1990 ----------------
B. O'N/U.S. Chairman