Labour Court Database __________________________________________________________________________________ File Number: CD91306 Case Number: AD9166 Section / Act: S13(9) Parties: CELMAC IRELAND LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's recommendation ST163/91 in a claim by a moulder for a higher rate of pay than the rate which he was paid, when he was transferred to lower graded work. .
Recommendation:
However this was a lay off and the claimant had the clear
option of going out but chose to work on. In these
circumstances and without prejudice to the outstanding
agreement which refers to normal working, I recommend
that the claimant receives 100% of his loss the first
week, 50% the second week and 25% the third week.
The Union appealed the recommendation to the Labour Court by
letter dated 11th June, 1991 under Section 13(9) of the
Industrial Relations Act, 1969. A Labour Court investigation
took place on 17th July, 1991.
UNION'S ARGUMENTS:
3. 1. The Rights Commissioner in his recommendation operated
from a false premise i.e. "the claimant had the clear option
of going out but chose to work on." The worker was informed
by his foreman that the transfer to the position of shift
labourer was to be permanent and no other options were open to
him. The worker was told that if he refused to work on as a
shift labourer, his employment would be terminated.
2. The Rights Commissioner failed to take account of the
established agreement between the Company and the Union which
provides for average pay to be paid to moulders, who relieve
labourers from time to time. It was wrong to differentiate
between this situation and normal working. The precedent from
previous "lay offs" is that moulders receive average pay. The
recommendation could be used by the Company to justify the
dismantling of well established conditions.
COMPANY'S ARGUMENTS:
4. 1. The worker has been employed by the Company for 5 years
and is well aware of the established "lay off" procedures.
The worker took up the position of shift labourer on 15th
March, 1991. He took up the position on a permanent basis as
far as could be foreseen at the time. In those circumstances,
he was paid the rate for the job. The only circumstances
where workers receive average pay on transfer from moulding to
labouring is in the event of temporary transfers (eg. sickness
of labourers etc.). By accepting the transfer to the
labouring position, the worker was protecting his earnings.
2. The Company must maintain a position whereby it has the
flexibility to deploy workers in cases where "lay off" is
necessitated. The Company has at all times acted fairly and
reasonably towards the worker. The Company is prepared to
accept the Rights Commissioner's recommendation.
DECISION:
5. The Court having considered the oral and written submissions
of the parties and the recommendation of the Rights Commissioner
decides that the complainant should be paid average earnings for
the period employed as shift labourer.
The Court so decides.
Division: MrMcGrath Mr Collins Mr Rorke
Text of Document__________________________________________________________________
CD91306 APPEAL DECISION NO. AD6691
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: CELMAC IRELAND LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's recommendation ST163/91
in a claim by a moulder for a higher rate of pay than the rate
which he was paid, when he was transferred to lower graded work.
.
BACKGROUND:
2. 1. The Company manufactures rigid toilet seats and covers.
The worker was employed by the Company on 22nd August, 1986.
He is now working as a moulder in the moulding department.
There are a number of moulders who work in the department and
each shift of moulders is serviced by a shift labourer.
2. The agreed procedure in a "lay off" situation is on the
basis of "last in, first out" applying to each department. In
the case of the moulding department, first to be laid off
would be the shift labourer being the least senior worker.
This happened on 15th March, 1991 and the worker in question
took up the position of shift labourer for the "lay off"
period 15th March, to 16th April, 1991. After the "lay off"
period, the worker resumed his position as a moulder. There
is a #90 per week differential between the wages of a moulder
and a shift labourer.
3. A dispute arose as to the wages due to the worker. The
Union contended that the workers average earnings as a moulder
should have been protected in a "lay off" situation as a
moulder. The Company's position was that the position of
shift labourer had been assumed on a permanent basis as far as
could be foreseen at the time. Therefore, the worker was paid
the rate for the job.
4. The dispute was referred to a Rights Commissioner and the
recommendation as set out below was issued on 10th May, 1991.
RECOMMENDATION
However this was a lay off and the claimant had the clear
option of going out but chose to work on. In these
circumstances and without prejudice to the outstanding
agreement which refers to normal working, I recommend
that the claimant receives 100% of his loss the first
week, 50% the second week and 25% the third week.
The Union appealed the recommendation to the Labour Court by
letter dated 11th June, 1991 under Section 13(9) of the
Industrial Relations Act, 1969. A Labour Court investigation
took place on 17th July, 1991.
UNION'S ARGUMENTS:
3. 1. The Rights Commissioner in his recommendation operated
from a false premise i.e. "the claimant had the clear option
of going out but chose to work on." The worker was informed
by his foreman that the transfer to the position of shift
labourer was to be permanent and no other options were open to
him. The worker was told that if he refused to work on as a
shift labourer, his employment would be terminated.
2. The Rights Commissioner failed to take account of the
established agreement between the Company and the Union which
provides for average pay to be paid to moulders, who relieve
labourers from time to time. It was wrong to differentiate
between this situation and normal working. The precedent from
previous "lay offs" is that moulders receive average pay. The
recommendation could be used by the Company to justify the
dismantling of well established conditions.
COMPANY'S ARGUMENTS:
4. 1. The worker has been employed by the Company for 5 years
and is well aware of the established "lay off" procedures.
The worker took up the position of shift labourer on 15th
March, 1991. He took up the position on a permanent basis as
far as could be foreseen at the time. In those circumstances,
he was paid the rate for the job. The only circumstances
where workers receive average pay on transfer from moulding to
labouring is in the event of temporary transfers (eg. sickness
of labourers etc.). By accepting the transfer to the
labouring position, the worker was protecting his earnings.
2. The Company must maintain a position whereby it has the
flexibility to deploy workers in cases where "lay off" is
necessitated. The Company has at all times acted fairly and
reasonably towards the worker. The Company is prepared to
accept the Rights Commissioner's recommendation.
DECISION:
5. The Court having considered the oral and written submissions
of the parties and the recommendation of the Rights Commissioner
decides that the complainant should be paid average earnings for
the period employed as shift labourer.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
_____________________
1st August, 1991 Deputy Chairman.
J.F./J.C.