Labour Court Database __________________________________________________________________________________ File Number: CD89542 Case Number: LCR12762 Section / Act: S67 Parties: CORK CORPORATION - and - IRISH TRANSPORT AND GENERAL WORKERS UNION |
Claim for the inclusion of overtime payments in holiday pay.
Recommendation:
7. The Court having considered the submissions of the parties
recommends that in those areas where overtime is worked on a daily
basis and is regular and rostered it should be included in the
calculation for holiday pay.
The Court does not concede that overtime shared or on a rotational
basis should be so included.
Division: MrMcGrath Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD89542 RECOMMENDATION NO. LCR12762
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: CORK CORPORATION
AND
IRISH TRANSPORT AND GENERAL WORKERS UNION
SUBJECT:
1. Claim for the inclusion of overtime payments in holiday pay.
BACKGROUND:
2. In July, 1988 the Union lodged a claim for the inclusion of
"regular and recurring" overtime in the calculating holiday pay on
behalf of all its members (covering several departments) who work
such overtime. The claim arose from the concession of a similar
claim on behalf of 8 garage craftsmen following the issue of
LCR11435.
3. The claim was rejected by the Corporation and the matter was
referred to the conciliation service of the Labour Court on 5th
July, 1988. A conciliation conference was held on 30th November,
1988. As no agreement was reached both parties subsequently
consented to a referral to the Labour Court for investigation and
recommendation. A Court hearing was held on the 30th August,
1989.
4. At the hearing disagreement was recorded between the parties
as to the precise nature and extent of the claim. The Court, with
the consent of the parties, agreed to adjourn the hearing and to
appoint an Industrial Relations Officer to assist the parties in
clarifying the claim. A further conciliation conference was held
on 20th September, 1989 at which the claim was clarified as to its
nature and to whom it applied (details supplied to the Court).
However, no agreement was reached on the claim and both parties
consented to a further referral to the Labour Court. A resumed
hearing was held in Cork on 8th December, 1989.
UNION'S ARGUMENTS:
5. 1. The overtime in question in each of the Departments is
regular and rostered and part of the normal working week. The
workers concerned are obliged to work this overtime as it is
necessary in order to maintain the various services (details
supplied to the Court).
2. It is now well established that where overtime is regular
and rostered, and complies with the Court's definition as such
i.e. when it is in effect part of the working week, it is
included in holiday pay. The Corporation in quoting the
Holiday Employees Act, 1973 is doing so in a way which was
never intended. The provision there has clearly to do with
casual and non regular earnings. This is borne out by the
fact that other regular earnings over and above basic pay are
included. The Act does not prohibit any developments of its
terms.
3. The Corporation has already conceded this claim in
principle and practise when it accepted LCR No. 11435 and
applied it to the garage staff. There are other workers,
apart from the garage staff, who have their overtime
calculated in their holiday pay.
4. Much of the overtime which is required to be worked is
formalised in Corporation/Union agreements, withholding it now
is clearly a discriminatory practise.
CORPORATION'S ARGUMENTS:
6. 1. Overtime is excluded from holiday pay under the terms of
the Holiday Employees Act, 1973.
2. The claim is contrary to the terms of the P.N.R. as it
applies in the Public Service in that it is cost increasing.
It cannot, either be considered as a minor claim as already
similar claims have been lodged by other groups within the
Corporation (details supplied to the Court). If this claim
was conceded it would have a repercussive effect throughout
other Local Authorities and Health Boards who have thousands
of similar workers whose basic pay is determined in exactly
the same manner as the workers here concerned.
3. Reference has been made to LCR11435 and to the fact that
some workers in the Corporation's employment who enjoy
"superannuated overtime" have the benefit of such reflected in
their holiday pay. In this regard, the Corporation would
point out that the numbers involved are minimal and are
dwindling steadily. This concession was made to specified
workers on a personal basis under LCR4798 in 1978. However,
this concession was limited to them (121 at the time, now
reduced to 64) and has not been extended to any other sections
or to their successors in the same sections. It can be
readily seen, therefore, that this precedent is a very narrow
and steadily decreasing one. In this regard, also the workers
who were the subject of LCR11435 were a small group, 8 in all,
who worked with and beside those who enjoyed superannuated
overtime under the terms of LCR4798 and who for many years,
unsuccessfully pursued the concession of the superannuated
benefit. The Corporation believe, that this anomaly was a
crucial factor in the Court's recommending concession of the
inclusion of such benefits in holiday pay in LCR11435.
However, the same situation does not apply in this claim.
6. 4. The Court in considering claims of this nature has
conceded some on the basis where overtime was rostered, but
has consistently rejected such claims where the overtime
involved did not meet a relatively narrow and precise
definition. The present claim, as it presently stands, does
not meet the definitions used by the Court in the past and
therefore should be rejected.
RECOMMENDATION:
7. The Court having considered the submissions of the parties
recommends that in those areas where overtime is worked on a daily
basis and is regular and rostered it should be included in the
calculation for holiday pay.
The Court does not concede that overtime shared or on a rotational
basis should be so included.
~
Signed on behalf of the Labour Court,
Tom McGrath
___3rd___April,___1990. ___________________
M. D. / M. F. Deputy Chairman