FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : JOHNSON CONTROLS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - TECHNICAL, ENGINEERING AND ELECTRICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. (A) Basic Rate. (B) Shift Premium. (C) Overtime Calculation.
BACKGROUND:
2. The Company has global operations in the automotive, battery and facilities maintenance business. Its business in Ireland is in integrated facilities employing 160 workers. The Company provides a source of expertise including operations management projects and consultancy services for various companies. The Company secured its contract providing a facilities management service to IBM (Ireland) Ltd, Mulhuddart, Co Dublin in November, 2003. Under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, 110 workers transferred to the Company from Serco Services Ireland Limited. At the IBM site the Company provides cleaning services, reception, project management, maintenance, security and environmental health and safety service. The dispute concerns approximately 16 electricians and flitters who carry out maintenance work at the site. The Union's claims are detailed as follows;
(i) An increase in the hourly rate of pay from €15.50 to €19.00 per hour for craftworkers and pro rata for facilities technicians effective from 21st January, 2005.
(ii) An increase in 4-cycle shift premium from 30% to 33.33% effective from 21st October, 2004.
(iii) Shift Premium to be included for the calculation of overtime effective from 21st October, 2004.
The Company rejected the claims. In January, 2005 following a ballot of workers, the Union served notice of industrial action on the Company. On the 25th January, 2005 the Labour Relations Commission intervened in the dispute and the Union suspended the industrial action pending the resolution of the dispute through procedures. A conciliation conference was held but agreement was not reached. The dispute was referred to the Labour Court on the 7th February, 2005 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Court hearing was held on the 7th April, 2005.
UNION'S ARGUMENTS:
3.Claim (i) Hourly Rate.
1. The claimants are treated less favourably than similar workers doing third party maintenance elsewhere. The majority of Facility Maintenance conducted in the State is best described as maintenance work out to contract and is conducted by employers covered by the ENJIC Agreement that specifically states at clause 16. "the union agrees to maintaining these rules with all other associations or individuals doing similar work. The employers on their part agree that they will not make any agreement altering the Rules with any other Association or individual engaged in the Electrical Contracting Industry". It is the Union's intention to honour this agreement. This includes its application to Johnson Controls. A number of other Facilities Maintenance companies operating in the State are paying no less than the ENJIC rates. The Union's pay claim is for an hourly rate of €19.00 per hour, with effect from 21st January, 2005. However, since the rate for the industry has increased to €19.72 from 1st April, 2005 the Union is pursuing an hourly rate no less favourable than the rate applying in industry generally.
Claim (ii) Four-Cycle Shift Premium.
2. The Company currently pays 30% for Four-cycle shift premium. Four-cycle shift is 168 hours per week cover, operated by working 12 hour rotating shifts over seven days each week. The premium paid for this form of shift working is 33.33% which is the Union's claim. The Court has supported this rate in a pervious Recommendation (LCR15899 refers).
Claim (iii) Shift Premium to be included for the calculation of overtime.
3. The claimants are all shift workers. They have only one basic rate of pay which is their consolidated shift pay. When overtime working occurs, instead of the Company applying Time + 50% or Time + Time as appropriate to their current pay rates, Management reduces workers' consolidated pay by dividing their pay by 130% and by multiplying by 100% to establish a notional hourly rate for overtime pay. This is inappropriate and unacceptable. The Court has supported another Union's claim that overtime should be paid at the consolidated shift rate (LCR15439 refers).
COMPANY'S ARGUMENTS:
4.Claim (i) Hourly Rate.
1. The Union is claiming a rate of pay that is in effect the ENJIC rate in the full knowledge that this Company is not an electrical contractor. The Company is not covered by the Registered Employment Agreement for the Electrical Contracting Industry because the main activity of its business is not the performance of electrical work. The Company pays the majority of its employees in this category a basic yearly salary, and not an hourly rate of pay, which increases with National Wage Agreements.
Claim (ii) Four Cycle Shift Premium.
2. The Company pays two shift rates, 30% for a four-cycle shift system and its second shift system is similar to a two cycle-shift, 7 a.m. -3 p.m. and 3 p.m. -11.p.m., Monday to Friday for which a 20% premium is paid, with one week of a night shift (11 p.m. -7a.m. worked every six weeks, attracting a 30% premium. Industry norms regarding shift cycles involve premiums for a two-shift cycle from 16%-20%, which is at the higher end of the scale in Johnson Controls, and the Company is within the normal range paid for a four shift cycle, 25%-33.33%.
Claim (iii) Shift Premium to be included for the calculation of overtime.
3. The Company pays overtime on the basic rate of pay only and this is clearly stated in the workers contracts of employment. The Company is not in a financial position to sustain the cost implications of consolidating the shift premium into the basic for the purpose of overtime.
RECOMMENDATION:
This dispute was referred to the Court pursuant to Section 26 (1) of the Industrial Relations Act, 1990 on the following basis;
"The parties have agreed that the dispute be referred to the Labour Court on the joint understanding that the Union's claims be considered on their merits when compared to other direct employers providing the same type of service as Johnson Controls"
The import of this agreed statement is that the parties have jointly referred the matter to the Court on the basis that it would not be rejected solely on the basis that it is a cost increasing claim precluded by the pay agreement associated with Sustaining Progress, under which it would ordinarily be adjudicated.
This agreement came about in consequence of a threat of industrial action by the Union, contrary to the stabilisation clause of Sustaining Progress. While the Court does not in any sense condone the circumstances giving rise to this reference, it proceeded to investigate the dispute on the basis agreed to so as to assist the parties in seeking a resolution to the issues involved.
The employer in this case is involved in the provision of services known as facilities maintenance. It employes electrical and mechanical craft workers and non-craft technicians. The Union has served a claim for the rates of pay similar, but not identical, to those provided for by the Registered Employment Agreement for the Electrical Contracting Industry and the MECA Agreement.
A similar claim was considered by the Court, under Section 2 of the Industrial Relations Amendment Act, 2001 (as amended). In Recommendation LCR 18019, the Court accepted that there are strong similarities between the work of those involved in facilities maintenance and that performed by craft workers employed in electrical contracting and mechanical engineering contracting.
While making recommendations for an interim settlement in that case the Court expressed the opinion that an ultimate resolution of these issues giving rise to the dispute must be found at a sectoral level rather than at the level of the individual employment. The Court went on to say that should the parties identify a basis upon which this can be brought about the Court would offer such facilities or assistance as it can.
The Court remains of the opinion that the approach which it proposed in LCR 18019 provides the most appropriate means of addressing the underlying issue giving rise to disputes of this nature.
The Court considers that the present dispute should be resolved on a basis similar to that recommended by the Court in Recommendation LCR 18019 (with adjustments to reflect changes in rates which have since taken place in comparable employments).
Accordingly, the Court recommends as follows:
Pay:
Craft Workers
Qualified but less than one year post apprenticeship €16.76 per hour
1 year post apprenticeship experience €16.97 per hour
2 years post apprenticeship experience €17.17 per hour
3 years post apprenticeship experience €17.38 per hour
4 years post apprenticeship experience €17.59 per hour
5 or more years post apprenticeship experience €17.80 per hour
Non-Craft €15.13 per hour
Shift Pay:
The Court recommends that the premium of 33.33% be introduced for 4 cycle shift working.
The Court does not recommend the consolidation of shift pay for overtime purposes, at this time.
In the exceptional circumstances of this case, and without prejudice or commitment, the Court would, on the application of either party made on or after 1st September, 2005, review these rates in the light of any developments in pay involving employers in the maintenance facilities sector generally.
Time Sheets and Water Testing and the introduction of a PDA System.
The Court recommends that the Union and its members immediately cooperate fully with the Company's requirements in relation to the use of time sheets and water testing and the parties should also engage in a positive manner with regard to the issue of the introduction of a PDA System.
Industrial Peace:
Any dispute or difference arising between the parties should be processed through the appropriate internal procedures and if unresolved should be referred to the relevant service of the Labour Relations Commission, EAT or the Court as appropriate. No form of strike, lock-out, industrial or coercive action should be taken by either party until these procedures have been resorted to and exhausted.
Signed on behalf of the Labour Court
Kevin Duffy
19th April, 2005______________________
TODChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.