Labour Court Database __________________________________________________________________________________ File Number: CD90130 Case Number: AD9017 Section / Act: S13(9) Parties: SCAFFORM LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioners Recommendation No. C.W. 2889 concerning the payment of overtime to four workers.
Recommendation:
5. Having considered the submissions made by the parties the
Court is of the opinion that the Rights Commissioner's
recommendation is appropriate to the circumstances and should
stand. The Court so decides.
Division: Mr O'Connell Mr Keogh Mr Devine
Text of Document__________________________________________________________________
CD90130 APPEAL DECISION NO. AD1790
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: SCAFFORM LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioners
Recommendation No. C.W. 2889 concerning the payment of overtime to
four workers.
BACKGROUND:
2. The Company is a scaffolding contractor and the workers
concerned are involved in the erection and dismantling of
scaffolding on construction sites. At most sites there is no full
time supervision on site however there are frequent visits by
Management to check progress and requirements. The dispute
concerns four workers who were employed at the Company's site at
Adelaide Road and Harcourt Terrace. On the 16th September, 1989
the workers were rostered to do scaffolding work until 4.00 p.m.
They were paid by the Company until 12.30 p.m. Likewise on the
21st October, 1989 two of the workers concerned were scheduled to
work at the Harcourt Terrace site until 4.00 p.m. They were again
paid until 12.00 p.m. The Company claims that the workers
concerned had not been on site on either occasion until 4.00 p.m.
They state that on the 16th September the workers concerned were
seen in the City Centre at 1.00 p.m. by another employee of the
Company. On the 21st September Management claims that an
inspection of the site at Harcourt Terrace showed that the site
was locked up at 3.00 p.m. The Union strongly denies that the
workers were off site and claims that the workers should be paid
until 4.00 p.m. The dispute was referred to a Rights Commissioner
on the 9th February, 1990. On the 19th February, 1990 the Rights
Commissioner issued his recommendation as follows:-
"I recommend that the Company offers #25 each to the workers
concerned and that this is accepted in settlement of this
dispute, on the understanding that failure to submit correct
time sheets or not to work agreed times can have very serious
consequences."
(The workers were named in the Rights Commissioner's
recommendation).
The Company rejected the recommendation and on the 23rd February,
1990 appealed it to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. A Court hearing was held on the
9th April, 1990.
COMPANY'S ARGUMENTS:
4. 1. On the 16th September, 1989 two of the workers concerned
were to continue scaffolding at Harcourt Terrace, the other
two workers were employed nearby at Adelaide Road. All were
to work from 08.30 to 12.30 or 08.30 to 16.00 depending on
progress requirements on site. On Monday 18th September an
employee of the Company mentioned in conversation with the
Managing Director that she saw the workers concerned in the
City Centre at 13.10 hours on Saturday 16th September. She
stated that the workers "had their bags" and looked as if they
were on their way to catch a bus home. She comes from the
same area as two of the workers and was also waiting on a bus.
On Monday 18th September the four workers time sheets reported
8.30 a.m. to 16.00 p.m. for each worker. Management
challenged the workers as to their times. The stated they had
worked till 4.00 p.m. This statement was rejected by the
Company who paid the workers until 12.30 in respect of
Saturday 16th September. The employee who had reported the
workers presence in the city centre was subsequently
approached by one of the workers concerned stating that they
knew who had spoken to the managing director.
2. On the 21st of October, 1989 the workers concerned were
again doing scaffolding work at Harcourt Terrace and Adelaide
Road. At 12.20 the contracts manager visited the Harcourt
Terrace site, spoke to one of the workers concerned and left
at 12.30 at which time the workers were going to resume
scaffolding at a gable end. At 15.10 the Managing Director
accompanied by his son visited the Harcourt Terrace site. No
Company workers were on site. The managing director was
advised by other workers on site that the workers concerned
"had just left." He thought they might be nearby at Adelaide
Road. He arrived there at 15.20 accompanied by his son but
was unable to gain access to the site as it was locked up. It
was quite clear to the managing director and his son that
there was no work in progress at that time on that site.
3. On Monday 23rd October the times of work of the employees
concerned were reported as being 08.30 to 16.00. They were
challenged by Management about these times. They stated they
were on site. Management rejected the statement and each
worker was paid until 12.30. At the Rights Commissioner's
hearing the workers' representative produced a time sheet
signed by a foreman on the Harcourt Terrace site purporting to
show that two workers were there until 16.00 hours. It
transpired that the foreman had not himself been on site on
21st October, 1989. It has further been stated that the
foreman had signed the work sheet when he became "aware of
work which had been done." Neither the Union nor the Rights
Commissioner invited the Company to examine the work sheet
either then or since. The existence of the day work sheet was
never previously made known to the Company by the workers or
their Union in various discussions about the matter in the 15
weeks between 21st October, 1989 and 9th February, 1990. Day
work sheets for various weeks between August and December,
1989, all involving some or all of the four workers concerned
were signed by the site foreman and received by the Company in
the course of following days.
UNION'S ARGUMENTS:
3. 1. On both occasions the workers were on site until 4.00 p.m.
When they initially queried the reason for the non payment of
their hours to 4.00 p.m. they were advised that the managing
director saw the workers in town at 1.00 p.m. It was not
until the Rights Commissioner's investigation that Management
stated it was another employee of the firm who allegedly saw
the workers. The Union categorically denies that one of the
workers threatened this employee. No threat was made to the
employee. It was also stated by the Company that the workers
were seen "carrying their bags" which usually includes work
clothes spanners, lunch etc. However one of the workers lives
in Finglas, always travels to work by bicycle yet no mention
was made of this by the employee who said she saw the workers
in town on the 16th September, 1989.
2. On the 21st October the workers concerned were on site at
Harcourt Terrace. They were involved in the dismantling of
scaffolding at the rear of the building. It is quite
conceivable that they were not seen by Management in this
area. Even though the front gates of the site were closed,
access was available through the rear entrance. The Union
would like to point out that a substantial amount of work was
carried out on both sites by the workers concerned between the
hours of 12.30 and 4.00 p.m. The Union admits that the
submission of incorrect time sheets is a breach of procedures.
It has accepted the Rights Commissioners recommendation and
believes the Company should do likewise.
DECISION:
5. Having considered the submissions made by the parties the
Court is of the opinion that the Rights Commissioner's
recommendation is appropriate to the circumstances and should
stand. The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
__________________________
11th May, 1990. Deputy Chairman
T.O'D./J.C.