Labour Court Database __________________________________________________________________________________ File Number: CD90457 Case Number: AD9042 Section / Act: S13(9) Parties: AUGHINISH ALUMINA LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. S.T. 230/90 concerning call-in payment.
Recommendation:
5. Having considered the submissions made by the parties the
Court is of the view that having regard to the system of call-out
in operation, the Rights Commissioner's Recommendation was correct
in the circumstances and should stand.
The Court so decides.
Division: Mr O'Connell Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD90457 APPEAL DECISION NO. AD4290
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: AUGHINISH ALUMINA LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. S.T. 230/90 concerning call-in payment.
BACKGROUND:
2. The Company operates a call-in system under which workers off
site on rest may be requested to report for work in response to
peak/emergency work loads for which they are paid in accordance
with agreed terms. The worker concerned is attached to the mobile
pool crew which operates a voluntary call-in roster. During the
weekend of March 17th 1990 the worker concerned was first on the
roster and was available to respond to any emergency call-in.
However when overtime became available on that weekend the worker
concerned was overlooked and another worker was called in to do
the work. The Union claimed compensation on behalf of the worker
concerned for the minimum call-in payment because of the Company's
non compliance with the call-in roster. The dispute was processed
through the Company's grievance procedure without settlement. The
issue was referred to a Rights Commissioner for investigation and
a hearing took place on the 28th June, 1990. On the 18th July,
1990 the Rights Commissioner issued his recommendation as
follows:-
"The Union views this case in a most serious light and is
demanding exemplary redress as a consequence.
The Company admitted the breach in (2) of the Stage 3 letter
(dated 17/5/90) to the Union. I accept the Company argument
advanced in (3) of the same letter. However I do not agree
that it can be done without penalty. The level of penalty
demanded by the Union for the breach is excessive. In all
the circumstances I recommend that the claimant is paid
without precedent or prejudice five hours pay and that in
addition he accepts the Company's offer contained in
paragraph (6) of the letter dated 17/5/90."
The Company rejected the recommendation and on the 7th August,
1990 appealed it to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. A Court hearing was held in
Limerick on the 2nd October, 1990.
COMPANY'S ARGUMENTS:
3. 1. The Company acknowledges that the worker concerned was
overlooked for call-in on the 17th March, 1990. Management is
fully prepared to make good any financial loss suffered by the
worker. He has been offered an alternate opportunity to work
call out similar to his net loss i.e. 15 hours at double time.
The timing of such work to be determined by mutual agreement.
Also, such work to be in addition to the Company's normal
requirements on call-in. Management is offering the worker
full recompense for his loss in an equitable manner and at a
cost to the Company of #158.00 plus overheads.
2. Management rejects the principle of paying workers for
time not worked. Where such practices have been
institutionalised elsewhere they have resulted in unwarranted
and insupportable extra costs. Such additional costs have not
proved to be in the mutual long term interests of either the
Company or workers. Were payment for time not worked to
become established in Aughinish Alumina then repercussive
claims would become inevitable. Management has already
experienced a number of such claims. The Company feels that
its offer of compensation through alternate work is fair and
adequate.
UNION'S ARGUMENTS:
4. 1. The Company has an obligation to operate the roster system
and should be penalised if it is disregarded. It is an
essential part of the Company system of operation that it
requests employees to attend work at anytime of the day or
night - weekends included, at very short notice.
2. The Union has co-operated with this requirement despite
the fact that it has sought on a continuous basis from the
Company, a formalised standby arrangement. The Company, of
course, have resisted the introduction of a standby
arrangement because of the cost implications. The Union has
allowed the call-in system to operate seeking only one
obligation from the Company, that they operate in accordance
with the roster.
3. The Union has accepted the Rights Commissioner's
Recommendation which recommended 5 hours' compensation to the
worker concerned simply because he recognised that the Union
has the right, at any time, to withdraw from the call-in
arrangement. It is far better from the Union's point of view
to see a just solution applied by way of nominal compensation
rather than a solution by confrontation. The Union would
request the Court to uphold the Rights Commissioner's
Recommendation.
DECISION:
5. Having considered the submissions made by the parties the
Court is of the view that having regard to the system of call-out
in operation, the Rights Commissioner's Recommendation was correct
in the circumstances and should stand.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
________________________
18th October, 1990. Deputy Chairman
T.O'D./J.C.