FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : BORD NA MONA - AND - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Whether sick leave hours are included in totalling annualised hours.
BACKGROUND:
2. The case before the Court concerns an annualised hours agreement made in February, 2001. The Agreement involves Supervisors working 2,248 hours after which overtime rates will apply.
The dispute relates to a different interpretation of time absent on sick leave and whether or not these hours should be included in totalling the annualised hours. The Union are claiming that the hours absent on sick leave should be included, whereas the Company claim they should be excluded.
The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 13th July 2004 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 12th October 2004, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. At the time of the Agreement, production levels were such that all work could be carried out within the 2,248 hours. Since then an increase in production levels has meant that supervisors are required to work overtime. If hours absent on sick leave are to be excluded from the annualised hours, overtime hours or part thereof would be worked for no payment.
2. Since the Agreement there has been an number of occasions where hours absent on sick leave have been included in the annualised hours and overtime rates have been applied where appropriate
COMPANY'S ARGUMENTS:
4. 1. Hours absent on sick leave cannot be classed as hours worked. The Union's claim is without merit and is contrary to the spirit of the Annualised Hours Agreement reached in 2001.
2. The Agreement includes an enhanced sick pay scheme for the Supervisors, whereby full normal pay including operations allowance is paid for up to six weeks of sick leave. In return Supervisors are required to be flexible in the provision of cover arrangements for both annual and sick leave with no consequential additional costs arising.
3. The Organisation of Working Time Act, 1997, specifically excludes hours absent on sick leave from reference periods.
RECOMMENDATION:
The Union's claim before the Court is on behalf of all supervisors at the Kilberry and Cuil na Mona works, for the inclusion of sick leave hours in the calculation of annualised hours.
Having considered the submissions of both parties the Court notes that the agreement reached between the parties in February, 2001, on the introduction of annualised hours, is silent on the question of sick leave hours. Under the terms of the agreement all hours in excess of 2248 are paid at an overtime rate. The Court takes the view that it is reasonable to interpret the agreement as excluding sick leave hours from the total annualised working hours and recommends accordingly.
This issue was highlighted due to the absence on sick leave of one supervisor for a period of total of 157 hours, where the supervisor had worked 125 hours overtime. The Union pointed to the fact that in the past sick leave absences were included in the
calculation and premium payments were made. The Company acknowledged that on previous occasions prior to 2003, payments inclusive of sick leave hours were made but that these payments were made in error.
Given the fact that the Company paid these payments in error and that the supervisor in question had an expectation of payment, the Court recommends that on this once off occasion a lump sum payment of €1000 should be paid to him, in discharge of that expectation.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th October, 2004______________________
AH/MB.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.