FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BUS EIREANN - LIMERICK (REPRESENTED BY BUS EIREANN) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Loss of earnings.
BACKGROUND:
2. The worker concerned is employed for over forty years by the Company as a mechanic.
The dispute before the Court concerns a claim by the Union on behalf of its member for compensation for loss of overtime for the period from the 6th of June, 2001, to the 28th of August, 2001. In 2001, the Company used Acting Foremen to cover for annual leave. The Union states that this deprived its member of overtime. The Company rejects the claim stating that the worker concerned maintained a high level of earnings during 2001 and suffered no loss.
The issue was referred to the Labour Court on the 15th of May, 2003, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 12th of November, 2003, the earliest date suitable to the parties.
The Union agreed to be bound by the Court's recommendation.
UNION'S ARGUMENTS:
3. 1. The only overtime shift foremen can get is to cover for holidays and absences due to illness.
2. By using Acting Foremen to cover for annual leave the worker concerned was deprived of overtime.
3. The worker concerned should receive €3,174.35 in compensation for loss of overtime from the 6th of June, 2001, until the 28th of August, 2001.
COMPANY'S ARGUMENTS:
4. 1. From a Health and Safety point of view it would have been irresponsible of the Company to allow the worker concerned work the additional time demanded during the period in question.
2. The worker concerned maintained a high level of earnings during 2001 and therefore, suffered no loss.
3.The issue was processed through the agreed Company/Union procedures, and by agreement of the parties a recommendation was issued by the Joint Industrial Relations Forum stating that the claim was not sustainable but an ex-gratia amount of €500 should be paid and accepted.
RECOMMENDATION:
The Court is conscious that an internal Joint Industrial Relations Forum considered this claim. In the circumstances, the Court would normally be reluctant to interfere with the findings of the Forum.
Having considered the written and oral submissions, it is the Court's view that the normal way of covering for staff shortages was changed in this case.
While the Company has argued that this change was for Health and Safety reasons, it would appear that the decision was rescinded following representations. It is not clear either whether this policy was changed across the Company or in this particular case.
Normally if an agreement has to be changed, this would be done after discussion and agreement with the Union. This was not done in this case.
While the Company can argue in relation to the claimant's earnings for the year it is clear that the arrangement that operated up to the Company changing it would have allowed him to earn significantly more money.
The Court notes the Forum findings that "having regard to the circumstances in which annual leave was covered in the summer of 2001, the forum recommends that Mr Foley be paid an ex gratis amount of €500". The Court agrees with the Forum's findings but finds the amount of the ex gratis payment to be low in the circumstances.
The Court, rather than create problems for the Joint Forum, recommends that the Forum increase the amount of the ex gratis payment.
In the absence of the Tribunal agreeing a figure, the Court will make a definitive recommendation.
Signed on behalf of the Labour Court
Finbarr Flood
17th December, 2003______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Gerardine Buckley, Court Secretary.