Labour Court Database __________________________________________________________________________________ File Number: CD89795 Case Number: AD905 Section / Act: S13(9) Parties: COW AND GATE LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by both parties against Rights Commissioner's Recommendation No. S.T. 273/89.
Recommendation:
5. Having considered the submission from the parties it is clear
to the Court that the Rights Commissioner was not aware of the
details of a formula for dealing with loss of earnings, which was
introduced by the Company in 1985.
In deciding on the appeal made by both parties the Court is of the
view that the Company should agree to amend the 1985 formula by
reducing the "benchmark" in service to 2 years and 6 months and by
increasing to 6 months the period for which earnings fall to be
maintained in the case of employees with service above the
benchmark. The Union should accept the payment based on the above
revised formula in full settlement of their claim.
The Court so decides.
Division: Ms Owens Mr Brennan Mr O'Murchu
Text of Document__________________________________________________________________
CD89795 APPEAL DECISION NO. AD590
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: COW AND GATE LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by both parties against Rights Commissioner's
Recommendation No. S.T. 273/89.
BACKGROUND:
2. The Company processes infant food formulae. In October, 1988
it discontinued whey processing. This resulted in a group of
workers (operators) being changed from the four shift work pattern
to the three shift system, with a reduction in earnings because
four shift working attracts a premium of 35% while three shift
attracts a 27.5% premium. The Union lodged a claim for
compensation of 2.50 times the annual loss of earnings of each
worker. The claim was the subject of a Rights Commissioner's
investigation on 18th July, 1989. His Recommendation is as
follows:-
"Recommendation
The union's claim is not realistic having regard to the fact
that the practice in industry generally is to phase out
payment for shift over a period, not to pay multiples of the
annual loss. It is just not possible to respond in any
meaningful way to a claim of #4010 per claimant. As the
Company has clearly indicated that the claim is unjustified,
and that it is totally opposed to any formula based on
phasing out, it makes the task of following practice
generally more difficult.
There is, however, a real loss suffered and in these
circumstances some form of payment is warranted. I do not
consider loss of the canteen allowance as appropriate for
consideration when arriving at a figure. I am also
discounting four weeks transitional period. In the
circumstances I recommend that each claimant receives #416
where he has been on the shift over three years and #208 for
those on less than 3 years."
Both parties appealed the Recommendation to the Labour Court. The
Court heard the appeal in Wexford on 15th December, 1989.
UNION'S ARGUMENTS:
3. 1. The degree of loss of income suffered by the workers was
not fully appreciated by the Union or by the Rights
Commissioner at the investigation on 18th July, 1989. It is
now clear that the level of loss is significant.
2. The four cycle shift pattern was in operation from 19th
August, 1985 until February, 1989. Consequently the standard
of living of the workers concerned with the claim was based on
a regular level of income from a four cycle shift premia.
(Details of loss of earnings for some of the workers supplied
to the Court. These details are based on earnings as per P.60
for year 88/89 and projected earnings for year 89/90).
3. The workers now have increased travelling costs due to the
three cycle operation. They will have to travel to work an
extra 72 days each year. The workers also lost annual leave
entitlement. Three cycle operatives are entitled to 20x8
hours leave while four cycle operatives get 24x8 hours per
annum.
4. The Rights Commissioner, in his recommendation recognised
the justification of compensation for the workers concerned
with the claim.
COMPANY'S ARGUMENTS:
4. 1. There is a formula in place in the Company for dealing
with compensation in situations where loss of earnings occurs
due to re-organisation. The formula which is part of an
agreement with the Union is as follows:-
"The "benchmark" is service of 2 years and 9 months. For
those with less service earnings are maintained for 3
months.
For those with more service earnings are maintained for 5
months."
The formula which is a favourable one by reference to others
applied in industry should be maintained and used. (The
Rights Commissioner's statement that the Company "is opposed
to any formula based on phasing out" is incorrect and must
have arisen from a misunderstanding of the Company's position
at the hearing).
2. A further formula exists in the Company whereby workers
are compensated for loss of earnings arising from a temporary
change in shift. The temporary formula has been applied to
the workers concerned with the claim, thus resulting in a
partial compensation payment being already made.
3. The Company is not prepared to compensate the workers for
loss of canteen allowance. An allowance of #3.50 per shift is
paid to 4 shift workers because of reduced access to canteen
facilities on that shift. The three shift, 5 day week pattern
workers, have increased access to canteen facilities and as
such the canteen allowance paid to the workers concerned is
proportionally reduced from #7 per week to #3.89 per week.
DECISION:
5. Having considered the submission from the parties it is clear
to the Court that the Rights Commissioner was not aware of the
details of a formula for dealing with loss of earnings, which was
introduced by the Company in 1985.
In deciding on the appeal made by both parties the Court is of the
view that the Company should agree to amend the 1985 formula by
reducing the "benchmark" in service to 2 years and 6 months and by
increasing to 6 months the period for which earnings fall to be
maintained in the case of employees with service above the
benchmark. The Union should accept the payment based on the above
revised formula in full settlement of their claim.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
__________________________
18th January, 1990 Deputy Chairman.
A.McG./J.C.