FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DUNLAOGHAIRE HARBOUR COMPANY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Credit for overtime for superannuation purposes.
BACKGROUND:
2. The issue before the Court relates to the loss of pensionable earnings arising from the loss of superannuated overtime. The Union's claim on behalf of six workers employed as cleaners, is that they be compensated for this loss and be awarded credit for the overtime period worked and this credit be included in superannuation calculations at the time of retirement or on receipt of pension. Each of the claimants worked an average of five hours regular, rostered overtime per week from July, 1996 to August, 2004. Five of the claimants worked the overtime for eight years continuously and one worked overtime for four years continuously. Based on its calculations (details supplied to the Court) the Union claims that the workers' basic pay should be increased by 2.3% for the reckoning in the calculation of pension entitlements in respect of five workers and 1.15% in respect of the sixth worker .
Under the Parallel Benchmarking process of June, 2004 the Company concluded an agreement with the Union on modernisation and change in relation to general operatives and cleaners. That agreement provided for a buy out of regular rostered overtime for cleaning staff at twice the annual loss. The average payment under this buy out for the six claimants is approximately €11,000. The Union claims that the overtime paid to the cleaners was included in their annual leave payments and was superannuated. The loss of the overtime will impact significantly on their pensions on retirement. The Union maintained that its initial claim for the buy out of the overtime was for five times the annual loss and that part of the quid pro quo for settling the claim for twice the annual loss was that both sides recognised that the compensation in relation to superannuation remained to be dealt with. The Company rejected the claim. The dispute was referred to the Labour Relations Commission. A conciliation conference was held but agreement was not reached. The dispute was referred to the Labour Court on the 9th February, 2005 in accordance with Section 26 (1) of the Industrial Relations Act, 1990. A Court hearing was held on the 26th May, 2005.
UNION'S ARGUMENTS:
3. 1. Compensation was agreed for the buy-out of regular overtime only. The overtime was superannuated and it was agreed that this would be addressed but dealt with separately. Because of the complexity of the issue the Company was not confident it could resolve the issue at local talks and suggested the imprimatur of a third party. Consequently it was agreed to refer the matter through Conciliation and to the Labour Court.. The Company also agreed not to oppose the claim.
2. The loss on pension as a direct loss of continuous overtime is very significant. The loss is not made up as a result of the increases under Benchmarking.
3. The Company had agreed to protect pension entitlements in past similar circumstances.
4. When compared to the 8% loss of pensionable earnings resulting from the loss of the overtime and the subsequent potential loss on pension, the credit the Union is seeking is very fair and reasonable.
COMPANY'S ARGUMENTS:
4. 1. The Company pension scheme is comparable to the Civil Service pension scheme and the rules of same provide for averaging of allowances in the last three years of employment prior to retirement.
2. Concession of the claim would have serious knock on effects throughout the civil and public services.
3. The 2004 Parallel Benchmarking agreement provided very generous benefits to employees, including a 24% pay increase and a buy out of this overtime at potential loss and not the actual loss based on hours worked.
4. The age profile of the claimants means retirement for one worker in 3 years time with the five others due to retire between 13 and 25 years time.
5. The Company never indicated to the Union that it agreed with or conceded the claim only that it agreed to this dispute being referred to the Labour Relations Commission.
RECOMMENDATION:
The Court notes that an agreement was reached between the parties for a buy-out of the overtime at issue. While it was agreed that the Union could pursue the claim now before the Court there is nothing to confirm the Union's assertion that the claim would be conceded.
The formula applied in this case (twice the annual loss) is not out of line with the normal level of settlement in similar circumstances. This settlement was accepted and the Court can see no basis upon which it could now recommend further compensation.
For these reasons the Court does not recommend concession of the claim.
Signed on behalf of the Labour Court
Kevin Duffy
10th June, 2005______________________
TOD/BRChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.