FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BAYER DIAGNOSTICS - AND - A WORKER (REPRESENTED BY AMALGAMATED ENGINEERING AND ELECTRICAL UNION) DIVISION : Chairman: Mr McGrath Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner Recommendation No. ST462/95.
BACKGROUND:
2. The Company is a wholly owned subsidiary of Bayer AG and manufactures large laboratory instruments. It was established in 1966 and employs 300 workers.
In 1993, the Company introduced a revised sick-leave policy which resulted in holiday accruals ceasing in any case where sick leave absence exceeded 16 weeks. (Workers are entitled to 23 days annual leave). Thereafter, holiday entitlement would accrue in the normal manner - 1.92 days per month. The 16 week limit is cumulative in the 12 month period from ther 1st January to the 31st December.
The dispute concerns the worker who had 116 days absence from work in 1994 due to illness on 24 occasions and lost 5 days holiday entitlement as a result. The Union referred the issue to a Rights Commissioner and a hearing took place on 10th April 1997. The Rights Commissioner's recommendation is as follows:
"I would therefore suggest to the worker that as he now appears to have achieved stability in his attendance pattern he should withdraw his complaint. In the event that he chooses not to do so, I must therefore recommend that his claim fails"
(The worker was named in the above recommendation)
The Union appealed the recommendation to the Labour Court on the 23rd June, 1997, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 12th September, 1997.
UNION'S ARGUMENTS:
3. 1. The Company unilaterally decided in 1993 to implement reductions to holiday entitlement during sick leave. In July, 1997, a large number of workers signed a statement denying that they had agreed to the changes. The changes altered the terms and conditions of the employment contract. The worker concerned had a serious illness in 1994 which resulted in his absence for a considerable amount of time. He has 23 years of service with the Company and has a very good attendance record apart from 1994.
2. The Union attempted on a number of occasions to discuss the issue with management but with no success as management refused to meet the Union. There are approximately 7 other workers who have lost holiday entitlements as a result of management's decision to implement the changes in 1993. The worker's case was a genuine once-off occurrence and he should be awarded the outstanding 5 days leave.
COMPANY'S ARGUMENTS:
4. 1. Prior to 1993, a worker who was absent from work for 12 months due to illness was entitled to full pay. In addition, the worker would also earn holiday entitlements whilst absent. In effect, a worker could earn 13 months' pay whilst being absent for 12 months. The practice was illogical and unfair and was changed to the present system in 1993. The 16 week qualifying period was accepted by the employees in May 1993.
2. The worker concerned advised his union that he "objected in spirit" to the loss of the 5 days but did not want to progress the issue. He also informed the Company of this. Seven other workers were affected by the changes in 1993 but the worker concerned is the only one to raise an objection.
DECISION:
The Court, having considered all of the views expressed by the parties in their oral and written submissions, does not find grounds to change the recommendation of the Rights Commissioner and, accordingly, upholds it.
It is clear, however, to the Court that the present arrangements and the manner in which they were decided and implemented do not find favour with the members of the Union. In the absence of agreement on any issue, the parties should arrange to have these issues negotiated using the normal industrial relations channels.
The Court so decides.
Signed on behalf of the Labour Court
Tom McGrath
6th October, 1997______________________
C.O'N./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.