Labour Court Database __________________________________________________________________________________ File Number: CD90587 Case Number: LCR13103 Section / Act: S67 Parties: DUBLIN CORPORATION - and - IRISH MUNICIPAL EMPLOYEES' TRADE UNION;SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Claim for the inclusion of overtime in holiday pay.
Recommendation:
5. The Court has considered very carefully the submissions oral
and written, of the parties.
The Court takes the view that, where overtime is regular and
rostered, and worked on a daily/weekly basis, so that it forms in
effect part of the working week, the individuals concerned should
be given the benefit of such overtime in the calculation of their
holiday pay. On the other hand overtime which is shared, or
worked on a rotational basis does not qualify for inclusion in
such calculations.
On the basis of the facts presented to the Court the Court
recommends that the Unions' claim be dealt with as follows:-
Category A: overtime worked under 1979 productivity
agreement:-
On the basis that all cleansing employees have
been paid 3 3/4 hours overtime per week since
1979 the payments in question qualify for
inclusion in the calculation of the holiday pay
of the individuals concerned;
Category B: overtime associated with Public Holidays - on
the basis that a standard additional payment of
3.50 hours at single time is made on a regular
basis irrespective of the amount of work to be
performed, this payment likewise qualifies for
inclusion in the calculation of holiday pay for
those individuals rostered on a regular basis
for duty on Public Holidays;
Category C: Week-end and midweek rostered overtime - as it
appears that this overtime is worked on a
shared or rotational basis it does not qualify
for inclusion in the calculation of holiday pay
except in the case of individuals who are
rostered on a weekly basis for its performance.
Having regard to the Corporation's financial difficulties it is
recommended further that payment on foot of the foregoing should
commence in respect of the holiday year 1991-1992.
Division: Mr O'Connell Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD90587 RECOMMENDATION NO. LCR13103
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: DUBLIN CORPORATION
and
IRISH MUNICIPAL EMPLOYEES' TRADE UNION
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Claim for the inclusion of overtime in holiday pay.
BACKGROUND:
2. The claim concerns 700 general operatives employed in the
Corporation's cleansing department. They work overtime which has
been formalised in agreements between the Corporation and Unions
as follows:-
Category A
In 1979 the Unions entered into a comprehensive productivity
agreement which included the payment of half an hour's pay at
time plus a half in respect of cleansing department employees
working a half hour at lunch time. This reduced their lunch
break from one hour to half an hour. This overtime amounts to
three and three quarter hours per week for the workers
concerned.
Category B
In 1987 the Unions entered into an agreement which included
the payment of three and a half hour's pay at single time for
essential cleaning work associated with public holidays.
Category C
This overtime is associated with work which could only be done
outside of and in addition to the normal hours of work of the
grade to which the worker belonged. The work is of a regular
and recurring nature. An agreement exists whereby employees
are rostered according to their grade to perform these duties.
The grades involved in this overtime are drivers, general
operatives on sweeping duty and supervisors. Overtime in
categories A and B covers all employees while overtime in
category C applies only to those on rosters or to individual
grades who are requested to perform specific duties. The
amount of hours worked each week for employees in category C
will depend on the workers' grade.
The Unions claim that the overtime listed in categories A, B and C
should be included in the calculation of holiday pay each year.
Management has rejected the claim on the grounds that overtime is
specifically excluded from holiday pay as defined by the Holidays
(Employees) Act, 1973. The issue was referred to the conciliation
service of the Labour Court on the 23rd July, 1990. A
conciliation conference was held on the 21st September, 1990 but
no agreement was reached. The dispute was referred to the Labour
Court on the 8th October, 1990. A Court hearing was held on the
16th November, 1990.
UNIONS' ARGUMENTS:
3. 1. The employees concerned work overtime on a regular and
rostered basis yet this is not reflected in their holiday pay,
therefore they actually lose money by taking annual leave,
i.e. the difference between basic and average pay. Overtime
has always been an integral part of the working week and has
been formalised in agreements between the Corporation and
Unions. The Unions view of regular and rostered overtime has
been accepted by the Court in previous recommendations
(L.C.R.'s 5887, 6665, 6507, 7135, 7889, 11435 refer).
2. The Corporation has offered two arguments against the
claim
(i) Overtime is specifically excluded from holiday pay as
defined by the Holidays (Employees) Act, 1973.
(ii) The Corporation cannot afford to concede the claim
in its present financial position.
These two arguments were made by employers in claims covered
by previous Court recommendations, yet the Court recommended
in favour of the Unions.
3. The financial loss imposed on the workers concerned in
taking two weeks annual leave in an unbroken period (which the
Corporation now insists on) can mean a loss to a worker of
#144 per week. It is unrealistic and undesirable that a
monetary penalty should be imposed on workers at holiday time
because of the nature of their work. In order to overcome
this reduction in weekly earnings on annual leave, workers
traditionally took leave in units of one or two days at a
time. However, this facility is no longer available to them
since April, 1990 following a directive from the Corporation's
personnel department.
4. The loss of earnings, especially to those on such low pay,
continues to be a source of great resentment to the workers
concerned. It places a very serious financial burden on
workers at a time when their families expect the minimum
reward of a holiday similar to employees in other industries.
CORPORATION'S ARGUMENTS:
4. 1. Payment for overtime is specifically excluded from the
basis of calculation as determined in the Holidays (Employees)
Act, 1973.
2. Concession of this claim would involve the Corporation in
additional expenditure of approximately #45,000 per annum
which could not be sustained having regard to the
Corporation's continuing serious financial position (details
supplied to the Court).
3. The claim is contrary to the terms of the Programme for
National Recovery applicable in the public service in that it
would involve the Corporation in increased expenditure.
Furthermore, the claim if conceded would have repercussive
effects.
4. The employees who are the subject of this claim are since
1979 in receipt of higher differentials than workers in other
sections of the Corporation engaged in comparable work. The
workers concerned are paid holiday pay based on those higher
differentials.
RECOMMENDATION:
5. The Court has considered very carefully the submissions oral
and written, of the parties.
The Court takes the view that, where overtime is regular and
rostered, and worked on a daily/weekly basis, so that it forms in
effect part of the working week, the individuals concerned should
be given the benefit of such overtime in the calculation of their
holiday pay. On the other hand overtime which is shared, or
worked on a rotational basis does not qualify for inclusion in
such calculations.
On the basis of the facts presented to the Court the Court
recommends that the Unions' claim be dealt with as follows:-
Category A: overtime worked under 1979 productivity
agreement:-
On the basis that all cleansing employees have
been paid 3 3/4 hours overtime per week since
1979 the payments in question qualify for
inclusion in the calculation of the holiday pay
of the individuals concerned;
Category B: overtime associated with Public Holidays - on
the basis that a standard additional payment of
3.50 hours at single time is made on a regular
basis irrespective of the amount of work to be
performed, this payment likewise qualifies for
inclusion in the calculation of holiday pay for
those individuals rostered on a regular basis
for duty on Public Holidays;
Category C: Week-end and midweek rostered overtime - as it
appears that this overtime is worked on a
shared or rotational basis it does not qualify
for inclusion in the calculation of holiday pay
except in the case of individuals who are
rostered on a weekly basis for its performance.
Having regard to the Corporation's financial difficulties it is
recommended further that payment on foot of the foregoing should
commence in respect of the holiday year 1991-1992.
~
Signed on behalf of the Labour Court
John O'Connell
__________________________
15th January, 1991. Deputy Chairman
T.O'D./J.C.