FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KERRY AGRIBUSINESS - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioners Recommendation IR410/00/MR, IR411/00/MR
BACKGROUND:
2. In 1991, the parties concluded an agreement concerning the milk collection services. This changed the method of paying wages from an hourly rate system to one of salary plus a commission rate per gallon. Part of the agreement stated that on top of salary and a meal allowance "There will be a further payment of £1,370 (1739.54 Euro) per annum which is based on a payment per gallon..." The Company employs 2 types of drivers - permanent drivers who have a regular route, and relief drivers who substitute for permanent driver during holidays and periods of illness etc. The dispute concerns 2 drivers - 1 relief driver who became permanent in 1998, and 1 driver who has remained as relief.
The Union claims that the 2 drivers became aware of discrepancies in their payments per gallon over a period of time and raised the matter with the Company. In February, 2000, the Company made retrospective payments of £1,420.61 (1803.80 Euro) to Driver A and £684.28 (868.86 Euro) to Driver B. However, the Union believed that the drivers were owed more money - £750 (952.30 Euro) in the case of Driver A and in excess of £6,500 (8250 Euro) for Driver B. It referred the dispute to a Rights Commissioner whose recommendation is as follows:
"Accordingly, I recommend that the Company should offer to make further paymentsof £500 (634.87 Euro) each to the 2 workers, and that the 2 claimants should accept these payments to be in full and final settlement of all claims relating to the operation of the Agreement from 1991 to date."
(The 2 workers and the Company were named in the recommendation.)
The 2 workers were paid £500 each, bringing their payments up to £1,920.61 (2438.67 Euro) for Driver A and £1,184.28 (1503.73 Euro) for Driver B.
The Union appealed the recommendation to the Labour Court on the 29th of December, 2000, in accordance with Section 13(9) of the Industrial Relation Act, 1969. A Labour Court hearing took place on the 25th of September, 2001 in Tralee.
UNION'S ARGUMENTS:
3. 1. The agreement is clear; there is no distinction between the categories of drivers. A relief driver covers for a full-time driver and should be paid the same salary.
2. If the drivers concerned were not covered by the agreement they should have been left on the 'clock' and not transferred to the new system.
3. It is probably true to say that the 2 drivers work longer hours than most regular drivers and yet they have been paid less, particularly in the case of Driver B. The Company has an obligation under the Payment of Wages Act to ensure that its employees are paid correctly.
COMPANY'S ARGUMENTS:
4. 1 The Company's understanding of the agreement was that permanent drivers who had a regular route had the capacity to earn the full payment (£1,370). It was not a guaranteed figure. Relief drivers did not have the potential to earn the same amount.
2. In 1999, following talks with the Union, the Company agreed to increase the compensation for relief drivers and made substantial payments to the 2 drivers concerned. This was over and above what was required of it under the terms of the agreement. The Company has agreed to accept the Rights Commissioner's recommendation and pay a further £500 to each driver.
DECISION:
The Court has given serious consideration to all aspects of this appeal. The Court is satisfied that a proportion of the drivers £1,370 (1,739.54 Euro) annual payment should have been paid to the relief drivers for the time spent collecting milk supplies during the period 1991 to 1998. The Court is also satisfied that the two drivers in question have at this point been paid some of that money - Driver A has been paid £1,920.61 (2,438.67 Euro) and Driver B £1,184.28 (1,503.73 Euro).
The Court recommends that Driver B should be paid an additional £100 (126.97 Euro) and Driver B an additional £1,500 (1904.61 Euro) in full and final settlement of this claim.
The Rights Commissioner's recommendation is hereby amended.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th October, 2001______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.