FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : CADBURY IRELAND LTD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Payment to persons on long-term absence.
BACKGROUND:
2. This case concerns a claim by the Unions for a payment for people who are on long term sick leave. The Company pays those on sick leave a sum equal to the annual cost of Voluntary Health Insurance Plan P to enable them to maintain cover. The Unions want the Company to pay this sum to all people who are on long term sick leave regardless of whether they are members of an insurance scheme or not.
Discussion took place locally but as agreement could not be reached. The matter was the subject of a conciliation conference under the auspices of the Labour Relations Commission but agreement was not reached. Following the conciliation conference a proposal put forward by the Industrial Relations Officer was rejected by the Union.
The matter was referred to the Labour Court on the 27th, June, 2002 under Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 27th August 2002.
COMPANY'S ARGUMENTS:
3. 1. The Company does not accept that there is any basis for continuing to pay benefits to employees who are out ill. The Company reluctantly agreed to pay those in the VHI on the basis that the benefit was illness related but does not accept that there is any basis for paying those who are not in the VHI.
2. The Company categorises a person with 6 months or more absence as a Long Term Absentee. This group which has averaged between 40-50 people in any year is a major concern to the Company as most of the people within this group have been absent for a number of years.
3. Any of the Long Term Absentees are free to avail of the lump sum by investing in any medical insurance scheme.
4. The Company rejects the Unions' argument that they had no knowledge that Long Term Absentees were not receiving the lump sum payment for VHI subsidy. From 1985-1992 a period of 7 years not one of the 40-50 annual Long Term Absentees were paid the VHI allowance. For the 9 years from 1992 until this claim was raised only those Long Term Absentees who are members of the VHI have been paid the lump sum.
5. The Company has never paid Long Term Absentees the lump sum payment unless they are members of the VHI.
UNION'S ARGUMENTS:
4. 1. The Union's Committee rejected the LRC proposal of the 9th July 2002, because it set out as a condition for payment that, an individual must be a member of a private health insurance scheme. No such condition applied when this agreement was first negotiated nor was it ever negotiated subsequently.
2. Entitlement to the lump sum was a condition of employment which applied equally to all concerned. This condition applied whether a person had a private medical scheme or not, whether a person had a family or not, and whether a person suffered ill health or not.
3. The Company's decision to change its policy in respect of this agreement was introduced unilaterally and as such is in breach of an existing agreement. Management, in the view of the Unions, does not have the right to breach an agreement freely entered into.
RECOMMENDATION:
Having considered the submissions of the parties the Court is satisfied that the agreement of 1985 was silent on the entitlement of employees on long term absence due to illness. In the absence of any evidence to the contrary the Court is, however, prepared to accept that it was custom and practice to confine payment of the allowance to those at work. The Court is further satisfied that this was only changed in respect of those actually incurring the cost of health insurance in 1992.
Having regard to all the circumstances of the case the Court is of the view that the approach proposed at conciliation is fair and reasonable and should be accepted.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Duffy
04th September,2002______________________
HMCD/MB.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Helena McDermott, Court Secretary.