FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CONNEX TRANSPORT IRL LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Rights Commissioner Recommendation R-035544-IR-05/TB.
BACKGROUND:
2. The appeal concerns a worker who is employed by the Company as a tram driver since January, 2004. The claimant was rostered to work on Friday 25th and Saturday 26th and Sunday 27th March, 2005. The shift commenced at 22.00 hours and ended at 05.30 the following morning. Sunday the 27th March was Easter Sunday and, therefore, the claimant worked into Easter Monday on that particular night shift. The Union claimed that the Company Union Agreement provided that workers would get a day back if they worked a rostered Bank Holiday. The Union claimed that the claimant did not get his day back and sought that the agreement with the Company should be applied in this case. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 8th December, 2005 the Rights Commissioner issued his recommendation as follows;
"The parties should agree a single method for additional compensation for working a public holiday. (As SIPTU have made no complaint under the Organisation of Working Time Act, I take it they are satisfied that the basic requirements of that piece of legislation are being observed).
Without prejudice to the outcome of those discussions and without precedent I recommend that the claimant should be given the benefit of an additional day off on the basis that he worked for five hours on a public holiday."
On the 12th December, 2005 the Company appealed the recommendation to the Labour Court. The Court heard the appeal on the 13th April, 2006.
COMPANY'S ARGUMENTS:
3. 1. Since the commencement of company operations in 2004 it has consistently applied that a day in lieu applies to roster shifts commencing on the public holiday and therefore, it applied the day in lieu to staff commencing work from 05.00 on a public holiday and for a 24 hour period from that time. This has been done for the purposes of consistency with the present shift arrangements in place. This also means that any worker commencing a rostered shift at 22.00 on the night of a public holiday is also given a day in lieu one month prior or further to working the public holiday at 05.00 on the Tuesday after the public holiday. Given the rotating nature of shifts no staff member is disadvantaged in any way with this arrangement.
2. The Company rejected the Rights Commissioner's recommendation on the basis that, as he is satisfied that the basic requirements of the legislation are observed by the Company, it confirms that the claimant has not been denied his appropriate entitlement to public holiday premia. While it is recommended that the claimant receive an additional day's entitlement on this public holiday, it is the Company's view that this is unfair given that there are a number of workers on similar shift patterns who cannot receive same.
UNION'S ARGUMENTS:
4. 1. The worker is entitled to the day in lieu under the Company Union Agreement. A Company memo dated 25th May, 2004 in relation to Overtime and Public Holidays states: "If 4 hours or more of a rostered shift falls on a Public Holiday (either end of the day), employees get one day off in lieu".
2. The Union is prepared to accept the Rights Commissioner's recommendation and engage with the Company as he suggested.
DECISION:
The Court is satisfied that the terms of the memo issued by management in relation to entitlements in respect of Public Holidays does not accurately reflect the established custom and practice.
The Court fully endorses the Rights Commissioner's recommendation that the parties should seek to reach agreement on whether the arrangement described in the memo or that provided for by the existing custom and practice should be applied in the future.
In the case of the Claimant, the Court is of the view that because of the confusion caused by the content of the memo the Rights Commissioner's recommendation that he be given a day off in lieu of the Public Holiday in question is reasonable. However, it should be regarded as strictly on a gratuitous basis and without precedent or prejudice to the outcome of the discussions recommended.
On this basis the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
24th April 2006______________________
TOD/BRChairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.