Labour Court Database __________________________________________________________________________________ File Number: CD92540 Case Number: INT913 Section / Act: S33(1) Parties: TECHNICAL, ENGINEERING AND ELECTRICAL UNION (TEEU) - and - THE ELECTRICAL CONTRACTORS ASSOCIATION AND;THE ASSOCIATION OF ELECTRICAL CONTRACTORS OF IRELAND |
An interpretation under Section 33(1) of the Industrial Relations Act, 1946, of Clauses 6a, 2(c) and 2(d) of the Electrical Contracting Industry Registered Employment Agreement.
Recommendation:
The Court has considered the questions of interpretation requested
and the views expressed by the parties on them.
1. CLAUSE 6(a) - TRAVELLING TIME
Having examined the terms of the Working Agreement and in
particular the Clause referred to, and having considered the views
of the parties expressed in their oral and written submissions,
the Court finds that Clause 6(a) applies only to those workers who
are required to start their days work on site as opposed to
starting work at contractors shops. Accordingly, in respect of
Clause 6(a), the Court finds in favour of the interpretation of
the employers.
In giving the above interpretation the Court is aware that by
custom and practice arrangements agreed between employers and
employees have applied which may not be in conformity with the
above interpretation which are more advantageous to the employees.
It is not the intention of the Court that those arrangements
should be interfered with as a consequence of the above
interpretation.
2. CLAUSES 2(c) CHARGEHAND AND 2(d) FOREMEN
Having considered the terms of the agreement and the views of the
parties, the Court finds that the agreement provides that the
premium be paid on the basic rate. The Court is satisfied that
for the purposes of Clauses 2(c) and 2(d) of the agreement basic
pay is the hourly rate of pay applicable to the worker which would
include Proficiency Pay.
Accordingly the Court is satisfied that the interpretation of the
employees in respect of the provisions of these Clauses is
correct.
The Court so finds.
Division: MrMcGrath Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD92540 INTERPRETATION NO. INT391
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 33(1) INDUSTRIAL RELATIONS ACT, 1946
INTERPRETATION NO. 391 OF 1992
PARTIES: TECHNICAL, ENGINEERING AND ELECTRICAL UNION (TEEU)
AND
THE ELECTRICAL CONTRACTORS ASSOCIATION AND
THE ASSOCIATION OF ELECTRICAL CONTRACTORS OF IRELAND
SUBJECT:
1. An interpretation under Section 33(1) of the Industrial
Relations Act, 1946, of Clauses 6a, 2(c) and 2(d) of the
Electrical Contracting Industry Registered Employment Agreement.
BACKGROUND:
2. 1. The parties to the Electrical Contracting Industry
National Joint Industrial Council (EINJIC) registered their
Working Rule Agreement with the Labour Court on the 24th
September, 1990. Disagreement has arisen over the
interpretation of:
(a) Clause 6(a) regarding the payment of travelling time
and,
(b) Clauses 2(c) and 2(d) regarding the basic rate for the
calculation of premia for chargehands and foremen.
CLAUSE 6(a)-TRAVELLING TIME
2. Clause 6(a) states:
"Within a distance of 11 miles by road from the shop,
men may be requested to start and finish on site instead
of from shop/hours to be in accordance with Rule 1. In
such cases the following shall be paid:-
0 up to 4 miles - one hour per day
Over 4 up to 5 miles - one and a quarter hours
per day...."
3. The Union contend that workers who are required to start at
the contractor's shop should receive the minimum travelling
payment of one hour a day.
4. Both Employer organisations to the EINJIC oppose this
contention.
CLAUSES 2(c) - CHARGEHAND AND 2(d) - FOREMEN
5. Clause 2(c) provides for a chargehand to be paid "10% above
the basic rate" and Clause 2(d) provides for a foreman to be
paid "not less than 20% of the basic rate."
6. The Union contend that the term "the basic rate" means the
hourly rate plus the appropriate rate of proficiency pay.
7. One Employer organisation of the EINJIC agrees with the Union
contention but the other Employer member is of the view that
the monetary differential of chargehands and foremen is
properly determined by applying the agreed percentage
differential to the hourly rate alone.
CLAUSE 6(a) TRAVELLING TIME
UNION'S ARGUMENTS:
3 1. The other points on the scale are careful to specify
"over X and up to Y miles", but there is no attempt to say "
over 0 up to 4 miles". This implies that the travelling time
is payable at 0 miles, which would of course be in the shop.
2. It is the general practice in the industry that
electricians who report to shop are paid one hour per day
travelling time.
3. The employers recognise this practice as they have
always based their calculations of basic pay on a minimum of
45 hours (i.e. 40 hours and 5 hours travelling time) when
making submissions to the Labour Court and other outside
bodies.
4. The payment of travelling time has been extended outside
of the electrical contracting industry to other employments
e.g. Dublin Corporation and other local authorities. In all
of these employments, electricians who report to the shop are
paid the minimum of 1 hour per day.
5. The Dublin Area Agreement for the Construction Industry,
which is a Registered Employment Agreement, provides that
everyone is paid the minimum of 1 hour per day travelling
time.
EMPLOYER'S ARGUMENTS:
4. 1. By definition this rule applies only to electricians who
are required to start the day's work on sites.
2. The agreement distinguishes, in several places, between
shops and sites, clearly indicating that the contractor's
shop is not a site.
3. On at least one occasion in the past the Union requested
that the first paragraph of this rule be varied to allow for
travelling time to be paid to operatives who report regularly
or intermittently to the shop. At that time the Union
clearly believed that the agreement conferred no right to
travelling time to those workers.
4. This is effectively a claim by the Union for an
amendment to the agreement and not a matter for
interpretation by the Court and, as such, it is covered by
Clause 5 of the PESP Agreement on Pay and conditions which
prohibits cost increasing claims other than those provided
for in that agreement.
CLAUSES 2(c) CHARGEHAND AND 2(d) FOREMEN
UNION'S ARGUMENTS:
5. 1. The Employer Labour Conference determined, during the
days of National Wage Agreements/Understandings, that the
definition of a person's basic rate was the rate used for the
calculation of premia (overtime, shift etc.). Since in the
EINJIC this rate includes proficiency pay, the 10% or 20%
premium for chargehands and foremen should be applied to that
basic rate.
2. Three of the four parties to the Registered Employment
Agreement subscribe to the same interpretation.
3. The parties to the EINJIC agreed that proficiency pay
will be consolidated into basic pay after the expiry of the
PESP. In those circumstances the relevant premia would be
applied to the full hourly rate of each individual.
EMPLOYER'S ARGUMENTS:
6. 1. The Agreement refers specifically to the basic rate. If
the Unions' interpretation is accepted there would not be a
single basic rate but at least five i.e. there are five rates
of proficiency pay. If this was intended by the parties to
the agreement, they would have referred to either "the
appropriate basic rate" or "his (or her) basic rate". That
they did not do; thereby indicating that they had only one
rate in mind, i.e. the hourly rate.
2. At least a majority of Electrical Contractors
Association members calculate the differential by reference
to the hourly rate. It is highly unlikely, to say the least,
that they could all have misinterpreted the agreement in the
same way.
3. The Union has been aware for many years that Electrical
Contractors Association members applied the agreement in this
manner. It is most improbable that they would have
acquiesced in this situation if they really believed that the
employers were wrong and that their members were being
underpaid.
RECOMMENDATION:
The Court has considered the questions of interpretation requested
and the views expressed by the parties on them.
1. CLAUSE 6(a) - TRAVELLING TIME
Having examined the terms of the Working Agreement and in
particular the Clause referred to, and having considered the views
of the parties expressed in their oral and written submissions,
the Court finds that Clause 6(a) applies only to those workers who
are required to start their days work on site as opposed to
starting work at contractors shops. Accordingly, in respect of
Clause 6(a), the Court finds in favour of the interpretation of
the employers.
In giving the above interpretation the Court is aware that by
custom and practice arrangements agreed between employers and
employees have applied which may not be in conformity with the
above interpretation which are more advantageous to the employees.
It is not the intention of the Court that those arrangements
should be interfered with as a consequence of the above
interpretation.
2. CLAUSES 2(c) CHARGEHAND AND 2(d) FOREMEN
Having considered the terms of the agreement and the views of the
parties, the Court finds that the agreement provides that the
premium be paid on the basic rate. The Court is satisfied that
for the purposes of Clauses 2(c) and 2(d) of the agreement basic
pay is the hourly rate of pay applicable to the worker which would
include Proficiency Pay.
Accordingly the Court is satisfied that the interpretation of the
employees in respect of the provisions of these Clauses is
correct.
The Court so finds.
~
Signed on behalf of the Labour Court
1st December, 1992 Tom McGrath
P.O.C./M.H. _______________________________
Deputy Chairman