Labour Court Database __________________________________________________________________________________ File Number: CD9124 Case Number: AD9137 Section / Act: S13(9) Parties: IRISH FERTILIZER INDUSTRIES - and - ELECTRICAL TRADES UNION |
Appeal against Rights Commissioner's Recommendation No. GC56/90 - Issue No. 2 concerning the application of the sick pay scheme for a part-time shift electrician.
Recommendation:
Having full regard to Section 3.4 of the Company/Union
Comprehensive Agreement, I would recommend that the worker is
entitled to Sick Payment at the Premium Rate."
The worker was referred to by name in the Rights Commissioner's
Recommendation.
7. The Company appealed the Rights Commissioner's Recommendation
to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. The Court heard the appeal in Cork on 17th
April, 1991.
COMPANY'S ARGUMENTS:
8. 1. There are two paragraphs in Section 3.4. of the
Comprehensive Agreement which deals with shift workers. The
first paragraph outlines when shift working applies; the
second, outlines the conditions pertaining to shift working.
The Rights Commissioner appears to have based his
recommendation on the second paragraph only. The issue of
conditions was not in question, but whether the conditions
should have been applied to the worker here concerned. The
first sentence of the first paragraph defines shift working
as "shift teams manned by employees who are day workers but
who are transferred to shift working". As the worker was on
day work when his illness commenced he cannot be regarded as
a shift worker.
2. There are many situations that can arise where an
employee is scheduled to work at a period when conditions
would be enhanced for one reason or another. This could be
during a plant overhaul when there would be high overtime
levels, working on a staff or a public holiday when premium
rates would apply or working in the capacity of a grade level
above ones own for a period. All of these situations, like
part time shift working, are opportunities for the individual
to work at a time of enhanced conditions. The Company holds
however, that if an individual, for whatever reason, is
unable to avail of that opportunity, then the enhanced
conditions should not apply.
UNION'S ARGUMENTS:
9. 1. The Company's construction arising from the clauses in
the Sick Pay Scheme is far fetched and an unreasonable
interpretation. Clause 3.4 of the Comprehensive Agreement
states clearly that the basic conditions pertaining to
regular shift workers applies to part-time shift workers,
therefore at the time of illness the worker had an
established entitlement.
2. The Court is asked to reject the appeal and endorse the
Rights Commissioner's Recommendation as not alone complying
with existing agreements but also as a fair and reasonable
proposal for the worker who suffered a loss of earnings while
sick contrary to the provisions and spirit of the sick pay
scheme applicable to shift workers.
DECISION:
10. Having considered the submissions from the parties and noting
in particular that the shift in question is rostered, the Court is
of the view that the Rights Commissioner's recommendation is
reasonable and should be upheld.
The Court accordingly rejects the appeal and so decides.
Division: Ms Owens Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD9124 APPEAL DECISION NO. AD3791
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT 1969
PARTIES: IRISH FERTILIZER INDUSTRIES
AND
ELECTRICAL TRADES UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
GC56/90 - Issue No. 2 concerning the application of the sick pay
scheme for a part-time shift electrician.
BACKGROUND:
2. At the Company's plant at Marino Point electricians are
employed as day workers. These electricians are transferred to
shift working for short periods in order to provide silent hours
cover. When transferred on shift the electricians are afforded
all the conditions pertaining to full-time shift working.
3. The worker here concerned was scheduled to commence shift
working on 18th June, 1990. On 10th May, 1990 the worker
submitted a medical certificate certifying that he was unfit for
work due to a leg injury. As the worker's illness was prolonged
he was unable to commence shift work and another electrician was
nominated in his place.
4. The Union met the Company in August 1990 and claimed sick
pay, on behalf of the worker, at shift rate. The Company rejected
the claim on the basis that the worker was on days when he went
sick and was not able to take up the option of working on shift.
The Company also indicated that a swap arrangement could operate
to allow the worker the opportunity of working shift at a later
date.
5. As no agreement could be reached the matter was referred to a
Rights Commissioner for investigation and recommendation. The
Rights Commissioner investigated the dispute on 6th September,
1990 and on 29th November, 1990 issued the following
recommendation.
"COMMENT:
I have studied in detail the provisions included in the
Comprehensive Agreement covering the Conditions of
Employment, and in particular, those provisions related to
the Sick Pay Scheme and would comment as follows:-
The objective of the scheme is to maintain salary levels for
employees who become ill. The level of Sick Payment is
dependent on length of service with the Company and also the
duration of the illness in any calendar year.
Under Section 3.4 of the Comprehensive Agreement "Conditions
of Employment for Part-time Shift Workers" it states:-
"The basic conditions pertaining to regular shift working
apply in the case of part-time shift working, and any
additional entitlements, like holidays, etc. apply pro rata
in relation to the period of part-time shift working". I am
advised that qualifying regular shift workers would receive
Full Sick Pay in relation to any period of illness in a
calendar year.
I am very conscious of the fact that a favourable
recommendation for the Union's claim may result in attempted
abuse by some employees. However, I have to address the
question, is there an entitlement to Full Sick Pay for the
worker under the terms of the Comprehensive Agreement?
The worker would seem to have the qualifying years of service
with the Company. He is on a regular roster over which he
has no control, and therefore has a guaranteed annual income.
The worker presumably was genuinely ill, and therefore had no
control as to the period and duration of his illness.
The question then arises as to his replacement and his
Conditions of Employment whilst covering for the sick
employee.
It is my belief that the Union and the Company should agree
as follows:-
That another employee would cover the absent employee who is
ill, on a 'Swap Roster' basis.
RECOMMENDATION:
Having full regard to Section 3.4 of the Company/Union
Comprehensive Agreement, I would recommend that the worker is
entitled to Sick Payment at the Premium Rate."
The worker was referred to by name in the Rights Commissioner's
Recommendation.
7. The Company appealed the Rights Commissioner's Recommendation
to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. The Court heard the appeal in Cork on 17th
April, 1991.
COMPANY'S ARGUMENTS:
8. 1. There are two paragraphs in Section 3.4. of the
Comprehensive Agreement which deals with shift workers. The
first paragraph outlines when shift working applies; the
second, outlines the conditions pertaining to shift working.
The Rights Commissioner appears to have based his
recommendation on the second paragraph only. The issue of
conditions was not in question, but whether the conditions
should have been applied to the worker here concerned. The
first sentence of the first paragraph defines shift working
as "shift teams manned by employees who are day workers but
who are transferred to shift working". As the worker was on
day work when his illness commenced he cannot be regarded as
a shift worker.
2. There are many situations that can arise where an
employee is scheduled to work at a period when conditions
would be enhanced for one reason or another. This could be
during a plant overhaul when there would be high overtime
levels, working on a staff or a public holiday when premium
rates would apply or working in the capacity of a grade level
above ones own for a period. All of these situations, like
part time shift working, are opportunities for the individual
to work at a time of enhanced conditions. The Company holds
however, that if an individual, for whatever reason, is
unable to avail of that opportunity, then the enhanced
conditions should not apply.
UNION'S ARGUMENTS:
9. 1. The Company's construction arising from the clauses in
the Sick Pay Scheme is far fetched and an unreasonable
interpretation. Clause 3.4 of the Comprehensive Agreement
states clearly that the basic conditions pertaining to
regular shift workers applies to part-time shift workers,
therefore at the time of illness the worker had an
established entitlement.
2. The Court is asked to reject the appeal and endorse the
Rights Commissioner's Recommendation as not alone complying
with existing agreements but also as a fair and reasonable
proposal for the worker who suffered a loss of earnings while
sick contrary to the provisions and spirit of the sick pay
scheme applicable to shift workers.
DECISION:
10. Having considered the submissions from the parties and noting
in particular that the shift in question is rostered, the Court is
of the view that the Rights Commissioner's recommendation is
reasonable and should be upheld.
The Court accordingly rejects the appeal and so decides.
~
Signed on behalf of the Labour Court
1st May, 1991 Evelyn Owens
M.D. / M.O'C. _______________
Deputy Chairman