Labour Court Database __________________________________________________________________________________ File Number: CD92790 Case Number: AD9319 Section / Act: S13(9) Parties: CASH AND COMPANY LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's Recommendation GC 48/92 concerning claim for compensation for loss of earnings due to the cessation of regular overtime earnings.
Recommendation:
5. The Court, given all of the circumstances of this case as
expressed by the parties in their oral and written submissions
finds no grounds to amend the Rights Commissioner's
recommendation.
Accordingly the Court confirms the Rights Commissioner's
recommendation and rejects the appeal of the Union.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
CD92790 APPEAL DECISION NO. AD1993
INDUSTRIAL RELATIONS ACT, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: CASH AND COMPANY LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation GC 48/92 concerning claim for compensation for loss
of earnings due to the cessation of regular overtime earnings.
BACKGROUND:
2. The workers concerned are employed by the Company as general
workers at the Company's store in Cork. Their duties include
stock movement from stockrooms to departments or to and from
despatch, packing goods and cleaning and clearing rubbish. As
part of an on-going agreement with the Company the four workers
concerned worked alternative Saturday overtime on the basis of two
on and two off.
In February, 1991 the Company announced that Saturday overtime for
the workers concerned would cease with immediate effect. The
Union claims that the work previously carried out by the general
workers on Saturday overtime was now performed by other members of
staff. The Company rejected the claim. Local level discussions
and a conciliation conference at the Labour Relations Commission
failed to resolve the issue.
The Union referred the matter to a Rights Commissioner for
investigation and recommendation. On 25th November, 1992 the
Rights Commissioner recommended as follows:
"I recommend that the Company make a once off payment of #250
per person affected by the cut back in regular overtime
earnings".
The recommendation was appealed by the Union to the Labour Court
on 16th December, 1992. The Labour Court heard the appeal on 25th
February, 1993.
UNION'S ARGUMENTS:
3. 1. The duties of the workers concerned are essential to the
day to day running of the store. The Company claims that this
work which includes assisting customers with heavy goods to
cars is no longer necessary on Saturdays.
2. Despite the company's assurances to the contrary the work
previously carried out by the workers concerned on Saturday
overtime is now performed by other members of the staff.
3. Saturday overtime working was part of the workers
conditions of employment. This was recognised by the company
which used Saturday overtime earnings in its calculation as
part of average pay for holiday purposes.
4. The overtime was removed at short notice without adequate
consultation or agreement.
5. The workers concerned should be restored to the conditions
of employment that existed prior to February, 1991, and
retrospective compensation should be paid for loss of overtime
earnings.
COMPANY'S ARGUMENTS:
4. 1. The level of business dictates whether overtime is needed
or not. Apart from peak trading periods the Company cannot
sustain overtime costs.
2. The changed nature of the business i.e. no stock movement
on Saturday and lower volume of heavy goods, dictates that
overtime is not needed on a regular basis.
3. The Company must maintain the right to determine when
overtime is necessary as is the practice throughout industry.
4. Overtime is and has always been voluntary, staff can
decide to work or not to work. The Company cannot, therefore,
be expected to compensate staff for the absence of something
they can choose to do or not to do.
5. The Company has honoured its commitment that the need for
overtime would be kept under review and overtime has been
offered to all four staff on a number of occasions in the past
two years.
6. Regular Saturday overtime working for general workers does
not apply in any other store in the group.
7. The Company do not see that there is a basis for
compensation but it considered the Rights Commissioner's
Recommendation was acceptable, in the context in which it was
put forward by him.
DECISION:
5. The Court, given all of the circumstances of this case as
expressed by the parties in their oral and written submissions
finds no grounds to amend the Rights Commissioner's
recommendation.
Accordingly the Court confirms the Rights Commissioner's
recommendation and rejects the appeal of the Union.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
__________________
26th March, 1993. Deputy Chairman
F.B./J.C.