FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BASTA HARDWARE LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Owens Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. Appeal of Rights Commissioner's Recommendation No. RC158/97 concerning appropriate rates of pay.
BACKGROUND:
2. The Company manufactures quality diecast components for the building industry. It employs 90 people at its plant in County Sligo.
The dispute before the Court concerns the Union's claim that the Company failed to honour a commitment made in 1989 to place a worker on the 'Press Shop' rate.
The worker concerned was appointed to the position of autolathe operator on the 20th of January, 1989. His letter of appointment outlined his basic rate of pay and that subject to satisfactory progress he would receive the 'Press Shop' rate. The Union argues that the worker's rate is less than that which applied to another employee who previously worked in the Press Shop.
The Company's position is that the comparator referred to by the Union departed the Press Shop in 1986 and that an error had been made in the calculation of his rate of pay in 1986 which placed him above the Press Shop rate.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
I have carefully considered all the documented statistics submitted during the hearing and in particular the CC6(Press Shop) rate, enshrined in the claimant's initial contract of employment. I am of the opinion this is the appropriate rate for the claimant and that the Union's comparison with an anomalous personal rate of another employee, does not stand up.
Nevertheless, I am also satisfied that the claimant has suffered some minimal loss since July 1989 due to the failure to strictly apply to the CC6 rate to him.
Accordingly I recommend as follows:
(a)That the worker's claim for parity with the comparator's rate of pay, fails.
(b) That the claimant's rate of pay be harmonised to the CC6 rate i.e. from £209.34 per week to £209.47 with immediate effect.
(c) That theCompany pay the worker an ex-gratia lump sum of £400 in respect of the anomaly which obtained between the rate which he enjoyed and the appropriate CC6 rate from July 1989 up to the present time.
The worker and comparator were named in the Recommendation.
The Rights Commissioner's Recommendation was appealed by the Union to the Labour Court on the 16th of June, 1997 under Section 13(9) of the Industrial Relations Act, 1969. The Labour Court heard the appeal in Sligo on the 2nd September, 1997.
UNION'S ARGUMENTS:
3. 1. The Company argued at the Rights Commissioner's hearing that the worker's rate was the appropriate rate for the job. In the worker's letter of appointment the Company outlined his basic rate and further referred to progression on to the 'Press Shop' rate subject to satisfactory progress.
2. The worker raised the issue with his supervisor in 1991. He was advised that his time-keeping was not up to scratch and therefore he would not be paid the rate. He again raised the issue in 1992 and on this occasion was informed that when he assumed full responsibility for setting he would be paid the rate. When the worker considered he had attained the necessary skill level he raised the issue with management and he was told that he was on the appropriate rate for the job.
3. The Company's acknowledgement that the comparator's rate should have been reduced as he no longer worked in the Press Shop is a clear indication that he held the Press Shop rate and retained the rate when he transferred in 1986.
4. The Union is satisfied that the Press Shop rate was established under the 1988 rationalisation programme and is one of the rates which was not red-circled at that time. In the circumstances the Union's claim that the worker be paid the Press Shop rate retrospective to 1992 is justified.
COMPANY'S ARGUMENTS:
4. 1. On appointment as autolathe operator, it was the Company's intention to place the worker on the Press Shop basic rate which is clearly evidenced in his letter of appointment. An analysis of his actual payments since his appointment confirm that he was paid this appropriate basic rate.
2. Any comparison with a previous worker in the Press Shop is not a valid proposition for the following reasons:
1. At the time of the worker's appointment, the comparator was not working in the Press Shop and was therefore not a valid comparator,
2. The comparator's basic rate incorporated an error in his favour which distorted his basic rate upwards.
3. The Company has accepted the error made in the calculation of the comparator's basic rate. The Union has attempted to capitalise on this error by linking the comparator's rate to the Press Shop rate to gain the benefit of the error for the worker concerned and to apply it to other people as appropriate at a later date.
3. It is the Company's contention that the appropriate comparator for the worker concerned is another worker who worked in the Press Shop at the time of the worker's appointment. The analysis provided by the Company (details supplied) showing the gross payments to both workers, show that their actual earnings are almost identical.
4. The rates of pay offered to the worker in his letter of appointment have been honoured by the Company in full.
5. The Rights Commissioner found that the appropriate rate for the claimant was the rate enshrined in the claimant's initial contract of employment and rejected the Union's comparison with the rate of pay of a worker who previously worked in the Press Shop.
DECISION:
Having given careful consideration to all the evidence submitted by both parties, the Court has concluded that the Rights Commissioner's Recommendation is fair in the circumstances and should be upheld.
The Court accordingly rejects the appeal and so decides.
Signed on behalf of the Labour Court
Evelyn Owens
7th October, 1997______________________
F.B./S.G.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.