FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DEPARTMENT OF DEFENCE - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation No. 607/98.
BACKGROUND:
2. The dispute concerns two workers who were employed by the Department as boilermen at Rockhill Army Barracks, in Letterkenny, Co. Donegal, for 16 and 18 years respectively. Following the conversion of the boiler to gas, in November, 1997, the two workers lost shift pay and overtime earnings. On their behalf, the Union sought compensation of 3 times the annual loss of earnings to each of the boilermen. The Department offered compensation equivalent to 6 months' loss of earnings. The dispute was the subject of an investigation by a Rights Commissioner who recommended that the workers be paid compensation equivalent to 1½ times the annual loss based on 1997 rates. (The annual level of loss of earnings for 1996/97 amounted to £2,134 and £2,005 for the two workers respectively.)
The Rights Commissioner's recommendation was appealed to the Labour Court, by the Department of Defence, on the 11th of January, 1999, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal in Donegal, on the 9th of March, 1999.
DEPARTMENT'S ARGUMENTS:
1. An examination of the facts does not support the conclusion reached by the Rights Commissioner. There are no records to suggest that agreement exists between Management and Unions for the payment of any set rate of compensation for loss of earnings in the State industrial sector, nor is the Department aware of any agreement on this issue in the Local Authority or health sector.
2. An examination of recent cases settled at various fora and involving the Department does not support the contention that payment of one and a half years' loss of earnings is an established norm. All recent cases involving the Department of Defence have been settled for sums less that 1.5 years' loss of earnings. The evidence available from other Government Departments/Offices would support the result of the analysis carried out by the Department.
3. An exception to the norm occurred in case AD9858 in which the Labour Court decided to award 1.5 times the annual loss, on an appeal of a Rights Commissioner's recommendation. The Court noted that its decision was based on the particular circumstances of the case and should not be regarded as having any precedent value in respect of any similar type of claim in this Department or elsewhere in the State Sector.
4. The Department's offer is generous in circumstances where many other employers would resist any significant compensatory payment. The Government's policy of curtailing expenditure in the Public Sector has placed severe financial restraints on the Department. Expenditure must be kept within the provisions of the Department's estimates and no provision has been made in the Department's estimates for 1999 to meet any award that might result from this claim.
UNION'S ARGUMENTS:
1. The workers were only informed verbally that they were changing from shift work to day work, even though it resulted in a major reduction in their earnings (details supplied to the Court). During this period they would have worked six public holidays and received double time.
2. Both men are 52 years old and they would have expected to receive the shift premia for thirteen years more. They have given years of loyal service to the Department, particularly in their capacity as boilermen working shifts. Any future increases received by the two workers will be based on their now lower rate of pay.
3. There have been several precedents, (including some in the Labour Court), where awards of one and one half time the annual loss, and higher, were recommended (details supplied). Accordingly, the level of compensation of 1½ times the annual, loss as recommended by the Rights Commissioner, is reasonable in the circumstances.
DECISION:
The Court is satisfied that one year's loss of earnings should be paid in these circumstances and, therefore, overturns the Rights Commissioner's recommendation and upholds the appeal.
The Court also notes that Management have agreed to give pension details to the two employees concerned. This information must specify how the shift earnings earned by each of the individuals will be reflected in their pension entitlements when they retire. This information should be given to each employee in respect of his own situation.
Signed on behalf of the Labour Court
Caroline Jenkinson
13th April, 1999.______________________
MK/BCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.