Labour Court Database __________________________________________________________________________________ File Number: CD93413 Case Number: LCR14226 Section / Act: S26(1) Parties: H. M. KEATING AND SONS LIMITED - and - THE BAKERY AND FOOD WORKERS' AMALGAMATED UNION |
Claim by the Union for:- a) payment for the reduction of the working week (salesmen, and service drivers), b) payment for working on sixth day (salesmen and service drivers), c) the rate for general workers in the confectionery department. d) the hourly rate divisor and, e) the rate for night work for general workers in the bread department.
Recommendation:
SALESMEN:
39 HOUR WEEK
Neither party could quantify the hours worked by Salesmen but
because they work a six day week, the assumption is that they work
more than 40 hours. Accordingly they are entitled to benefit from
the agreement on working hours contained in the P.N.R. Because
they are paid basic plus commission, salesmens total remuneration
is not entirely performance related as claimed by the company but
is a mixture of both a fixed emolument and a performance related
addition. In the circumstances, the Court finds it to be a
reasonable assumption that they work more than 40 hours and
accordingly recommends that the parties enter negotiations to find
a mutually acceptable way of implementing the Frame Work Agreement
on Hours of Work in respect of salesmen.
RATES OF PAY
Having regard to the terms of the P.E.S.P. the Court does not find
grounds to recommend concession of the Union's claim in respect of
sixth day working.
LCR14226
SERVICE DRIVERS
Having considered the arguments set out by the parties, the
Court's recommendation in relation to the 39 hour week and the
sixth day working is the same as for salesmen. The Court does not
find that grounds have been established to alter the negotiated
pay structure in respect of inconvenience differential.
GENERAL WORKERS, CONFECTIONERY DEPARTMENT
Although the Union quotes J.I.C. minutes of 1974 and June 1987 in
relation to rates of pay, the Union negotiated a pay deal in
relation to these workers in late 1987. This deal has been
updated through the full application of National Pay Agreements
and the Court does not now find grounds to recommend alteration of
the existing rates.
The Court considers that hourly overtime rates should be
calculated on 1/39th of the weekly rate for each hour after 39.
Part-time workers who work more than 39 hours should have their
overtime calculated on the same basis.
LCR14226
GENERAL WORKERS, BREAD DEPARTMENT
Having examined the relevant documentation, the Court is satisfied
that 25% is the agreed and traditional night differential in the
company and that 33 1/3% only applied to red-circled individuals.
In the circumstances the Court does not recommend concession of
the Union claim.
Division: Mr Heffernan Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD93413 RECOMMENDATION NO. LCR14226
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES: H. M. KEATING AND SONS LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
THE BAKERY AND FOOD WORKERS' AMALGAMATED UNION
SUBJECT:
1. Claim by the Union for:-
a) payment for the reduction of the working week
(salesmen, and service drivers),
b) payment for working on sixth day (salesmen and
service drivers),
c) the rate for general workers in the confectionery
department.
d) the hourly rate divisor and,
e) the rate for night work for general workers in the
bread department.
BACKGROUND:
2. 1. These claims were made by the Union in July, 1992 and
following a series of local negotiations no progress was made
in resolving the issues. The matter was referred to the
Labour Relation's Commission and a conciliation conference
took place on 6th October, 1992. Agreement could not be
reached and the claims were referred to the Labour Court.
The Court investigated the matter on 27th January, 1993 but
adjourned the hearing and referred the issues back to
conciliation. A further conciliation conference was held on
25th March, 1993 but again no progress was made. The matter
was referred by the Labour Relations Commission to the Labour
Court on the 12th July, 1993. The Court investigated the
dispute on the 18th August, 1993 in Cork.
LCR14226
(A) PAYMENT FOR THE REDUCTION OF THE WORKING WEEK (SALESMEN AND
SERVICE DRIVERS)
UNION'S ARGUMENTS:
3. 1. This can be introduced either by giving the workers six
extra days holidays or increasing the rate of pay by 1/40th
or 2 1/2%.
COMPANY'S ARGUMENTS:
4. 1. This is a cost increasing claim and precluded under the
terms of the PESP.
2. Van salesmen do not work set hours, they are paid a
basic rate plus commission. Therefore, the rate of pay is
performance related and not time related and as such the 39
hour week is not applicable.
(B) PAYMENT FOR WORKING ON THE SIXTH DAY (SALESMEN AND SERVICE
DRIVERS)
UNION'S ARGUMENTS:
5. 1. Salesmen do not work fixed hours but should receive
extra payment for working the sixth day.
2. Service drivers should be paid for working on the sixth
day in the same way as the workers in the bakery.
COMPANY'S ARGUMENTS:
6. 1. This is a cost increasing claim and precluded under the
terms of the Programme for Economic and Social Progress
(PESP).
2. The workers are paid a 10% differential for Saturday
working under and agreement reached with the Union in 1983.
(C) THE RATE FOR GENERAL WORKERS IN THE CONFECTIONERY DEPARTMENT.
UNION'S ARGUMENTS:
7. 1. It was agreed by the Joint Industrial Council for the
Bakery and Flour Confectionery Trade that general workers
should receive a minimum of 85% of the Bakers' rate.
LCR14226
COMPANY'S ARGUMENTS:
8. 1. This claim is a cost increasing claim and precluded
under the terms of the PESP.
2. The Confectionery Company, Owen Binchy and Son Limited
is a separate company to H. M. Keating and Son Limited, the
Bakery.
3. There is no agreement which sets the rate at 85% of the
Tablehand rate.
4. The Company's confectionery sales have been declining
and business conditions are very difficult.
(D) THE HOURLY RATE DIVISOR
UNION'S ARGUMENTS:
9. 1. The divisor for calculating pay with the 39 hour week
should be based on 39 hours and not 40 hours.
COMPANY'S ARGUMENTS:
10. 1. If the hourly rate used as the basis of calculation for
overtime purposes is increased to 1/39th, the overtime bill
for the year will increase substantially leading to a loss on
the implementation of the 39 - hour week.
(E) THE RATE FOR NIGHT WORK FOR GENERAL WORKERS IN THE BREAD
DEPARTMENT
UNION'S ARGUMENTS:
11. 1. The rate for night work should be 33 1/3% as per the
agreement made on 16th July, 1985.
COMPANY'S ARGUMENTS:
12. 1. This claim is a cost increasing claim and precluded
under the terms of the PESP.
2. The time differential paid for nightwork under the
Bakery Joint Industrial Council is 25%. This position was
upheld by the Labour Court (Recommendation No. LCR 11095).
3. A small number of employees receive an 8.33% flexibility
bonus on a red circle basis under a 1985 agreement covering
the transfer of employees from the old to the new bakery.
LCR14226
RECOMMENDATION:
SALESMEN:
39 HOUR WEEK
Neither party could quantify the hours worked by Salesmen but
because they work a six day week, the assumption is that they work
more than 40 hours. Accordingly they are entitled to benefit from
the agreement on working hours contained in the P.N.R. Because
they are paid basic plus commission, salesmens total remuneration
is not entirely performance related as claimed by the company but
is a mixture of both a fixed emolument and a performance related
addition. In the circumstances, the Court finds it to be a
reasonable assumption that they work more than 40 hours and
accordingly recommends that the parties enter negotiations to find
a mutually acceptable way of implementing the Frame Work Agreement
on Hours of Work in respect of salesmen.
RATES OF PAY
Having regard to the terms of the P.E.S.P. the Court does not find
grounds to recommend concession of the Union's claim in respect of
sixth day working.
LCR14226
SERVICE DRIVERS
Having considered the arguments set out by the parties, the
Court's recommendation in relation to the 39 hour week and the
sixth day working is the same as for salesmen. The Court does not
find that grounds have been established to alter the negotiated
pay structure in respect of inconvenience differential.
GENERAL WORKERS, CONFECTIONERY DEPARTMENT
Although the Union quotes J.I.C. minutes of 1974 and June 1987 in
relation to rates of pay, the Union negotiated a pay deal in
relation to these workers in late 1987. This deal has been
updated through the full application of National Pay Agreements
and the Court does not now find grounds to recommend alteration of
the existing rates.
The Court considers that hourly overtime rates should be
calculated on 1/39th of the weekly rate for each hour after 39.
Part-time workers who work more than 39 hours should have their
overtime calculated on the same basis.
LCR14226
GENERAL WORKERS, BREAD DEPARTMENT
Having examined the relevant documentation, the Court is satisfied
that 25% is the agreed and traditional night differential in the
company and that 33 1/3% only applied to red-circled individuals.
In the circumstances the Court does not recommend concession of
the Union claim.
~
Signed on behalf of the Labour Court
21st October, 1993 Kevin Heffernan
P.O.C./A.L.
___________________________________
Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Paul O'Connor, Court Secretary.