Labour Court Database __________________________________________________________________________________ File Number: CD90456 Case Number: AD9044 Section / Act: S13(9) Parties: AUGHINISH ALUMINA LIMITED - and - NATIONAL ENGINEERING AND ELECTRICAL TRADE UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. S.T. 103/90 concerning call out payment.
Recommendation:
5. Having considered the submissions made by the parties the
Court, having regard to the system of call-out in operation is of
the view that 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__________________________________________________________________
CD90456 APPEAL DECISION NO. AD4490
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: AUGHINISH ALUMINA LIMITED
and
NATIONAL ENGINEERING AND ELECTRICAL TRADE UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. S.T. 103/90 concerning call out payment.
BACKGROUND:
2. The worker concerned is employed as a fitter. The Company
operates a call-out system under which workers off site on rest
may be requested to report for work in response to peak/emergency
workloads for which they are paid in accordance with agreed terms.
The worker is attached to the garage crew which operates a
voluntary call-out roster. During the weekend of February 18th
1990 the worker concerned was the fitter who was first on the
roster and was available to respond to any emergency call-out.
The supervisor on duty chose to ignore this roster and when a
particular fitter was needed, called in one who on this particular
weekend was at the bottom of the roster. The Union claimed
compensation on behalf of the worker concerned for the minimum
call-out payment on the basis of the Company's non compliance with
the call-out roster. The dispute was processed through the
Company's grievance procedure without settlement. The issue was
referred to a Rights Commissioner on the 12th June, 1990. On the
27th June, 1990 the Rights Commissioner issued his recommendation
as follows:
"The Union cited two cases where payment as claimed had been
made in similar circumstances previously.
In these circumstances and having particular regard to the
fact that the claimant did make himself available with the
natural restrictions on his personal time as a result, I
recommend that the Company concedes the claim as presented.
I am further influenced by the fact that the claimant has an
impeccable record in availability for call in work."
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 in calling the other worker
to site on the 18th February, 1990, the worker concerned who
was first on the call-in roster, lost a work opportunity which
would have allowed him to earn 4 hours pay at double time.
Accordingly, on being advised of the error Management offered
the worker an alternative earning opportunity (details
supplied to the Court). Such opportunity to be equivalent in
value to the original call-in and to be in addition to the
Company's normal requirements on call-in. This arrangement
would allow the worker to fully recoup his loss without
detracting from his (or fellow employees) future earnings.
Management would in effect be paying twice for the one call-in
at an additional cost to the Company of #55 plus overheads.
2. Management believe that the above arrangements represent
fair and adequate recompense for the loss suffered by the
worker. We sincerely reject the principle of paying employees
for time not worked. Where such practices have become
institutionalised elsewhere they have resulted in unwarranted
and insupportable additional costs. Such costs have not
proved to be in the best mutual interests of either Management
or employees. Were payment for time not worked to be
established as the norm in the Company then repercussive
claims would become inevitable. Management have already
experienced a number of such claims and have had to withstand
same.
3. The Company makes sincere efforts towards ensuring equity
of earnings under the call-in system. Occasional mistakes do
occur. In such cases the Company believe that the offer of
alternative work is fair to all concerned. Accordingly,
Management would ask the Court to uphold the Company's offer
of full compensation via alternative work opportunity to be
fair and equitable redress in the workers case.
UNION'S ARGUMENTS:
4. 1. The Company Union Agreement does not cover any stand-by by
arrangement but nevertheless the Company expects a one hundred
per cent commitment from the fitters in answering emergency
call-outs. The workers in the garage section installed the
roster system, which has worked satisfactorily for a long
period of time - Aughinish Alumina Limited being the main
beneficiary because they now had a stand-by facility but did
not have to pay for same.
2. On the other hand, the workers when they were first on the
roster accepted that their movements over that particular
weekend were restricted, with the only compensation being the
chance of a call-out. The Company must recognise this
position and in so doing, must accept that the worker
concerned should be compensated.
3. In the production sector the Union has information that
while similar rosters exist - two production workers were paid
compensation when their supervisor chose to ignore their
particular roster, one of whom received twelve hours overtime,
which was equivalent to the particular call-out. The Union
feels that the worker concerned should be treated no better
nor worse than his fellow workers in this instance.
DECISION:
5. Having considered the submissions made by the parties the
Court, having regard to the system of call-out in operation is of
the view that 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.