FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CHARJON INVESTMENTS LTD T/A THE GOAT GRILL (REPRESENTED BY SMITH FOY & PARTNERS SOLICITORS) - AND - WORKERS (REPRESENTED BY MANDATE TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation R-031917-ma-05/GF
BACKGROUND:
2. The workers concerned commenced employment with the Company in 1995 and 1999 respectively as waiting staff. They both worked in excess of 19 hours per week.
Following a query from the workers concerning breaks their working hours were reduced by 2 hours per week.
The issue was referred to a Rights Commissioner for investigation and recommendation. His recommendation issued on the 28th October 2005 as follows:-
“I recommend the sum of €1,000 cash in compensation to be paid to the claimants.”
The Union on behalf of its members appealed the recommendation to the Labour Court on the 16th November 2005, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 4th May 2006.
UNION'S ARGUMENTS:
3. 1.The hours of our members were reduced in March 2004 by approximately 2 hours per week with a consequent reduction in their weekly earnings.
2. The Company is paying our members substantially lower than therate paid within the trade that forms part of a collective agreement between the Licensed Vintners Association (LVA) and the Trade Union.
COMPANY'S ARGUMENTS:
4. 1.The lunch time shift was reduced by 30 minutes per day in March 2004, this was due to a downturn in business. All staff suffered the same reduction.
2. The Claimants were not willing to work evening shifts generally and were not willing to work at the week-end.
3. The agreement referred to by the Claimants is not a Registered Employment Agreement. It is only an agreement to recommend rates to the members of the LVA and the Trade Union. It is not a binding agreement.
DECISION:
Preliminary issue.
The Employer raised an objection to the Court’s jurisdiction to hear and determine this appeal on the basis that it had not been lodged within the time limit prescribed by Section 36(2) of the Industrial Relations Act 1990. In this regard it was submitted that the Rights Commissioner issued a Recommendation in the case on 16th August 2005 under the Industrial Relations Act 1969. The Rights Commissioner issued a further Recommendation on 28th October 2005, which was expressed to relate to the Industrial Relations Act 1969 and the Payment of Wages Act 1991. The Employer’s representative submitted that the first document issued was a valid Recommendation of the Rights Commissioner and that the time for appeal started to run from the date on which it issued.
It was further submitted that the second document issued was in identical terms to the first document except that it appeared to have been issued under the Payment of Wages Act 1991. It was contended by the Employer that in so far as this document also purported to deal with the issues referred under the Industrial Relations Act 1969, it was invalid. It was pointed out on behalf of the Employer, and the Court fully accepts, that matters arising on appeal under the Payment of Wages Act 1991 are within the exclusive jurisdiction of the Employment Appeals Tribunal.
The Union representative told the Court that having received the first Recommendation he contacted the Rights Commissioner Service of the LRC and raised certain issues in relation to its content, including the failure of the Rights Commissioner to deal with the issues raised under the Payment of Wages Act 1991. He also sought clarification on the award of compensation provided for in the Recommendation. The Rights Commissioner Service subsequently indicated that a corrected Recommendation would be issued in due course. When the second Recommendation issued the Claimants instructed that it be appealed.
Conclusion.
The Court is satisfied that the second document issued by the Rights Commissioner dated 28th October 2006 constituted a final Recommendation in the case. It was clearly intended by the Rights Commissioner that this document would supplant that which he issued on 16th August 2006. It is also noteworthy that the Employer took no action in relation to the first document and did not seek to either appeal it or to implement its terms. In these circumstances the Court is satisfied that the time limit for the bringing of an appeal commenced from the date on which this second document issued. As the appeal was lodged within six weeks from that date it is properly before the Court.
Other matters were raised in relation to the content of the Recommendation under appeal and the failure of the Rights Commissioner to specify the statutory provisions under which various recommendations were made. Suffice it to say that this appeal is a de novo hearing of the case and any defects or ambiguities in the Recommendation can be adequately cured by the Determination of the Court.
Substantive issues.
Due to changed circumstances since the hearing before the Rights Commissioner, there are now only two issues of relevance. In respect of these issues the Court recommends as follows:
Rate of pay.
It is noted that the L.V.A. is a body which is substantially representative of the Licensed Trade in Dublin. That Body has agreed rates of pay with the Union which it has recommended to employers in the trade. It follows that the rates contained in that agreement are regarded by a representative group of employers in the trade and the representative Trade Union as being fair and reasonable. In these circumstances the Court accepts that the negotiated rate for the trade is appropriate in this case. Further, in line with normal industrial relations practice the date of claim was the date on which the Union first sought a meeting with the Employer to discuss rates of pay, namely 7th May 2004.
Reduction in hours
The Court accepts that the Claimants’ hours were reduced and that this reduction was unfair.
Decision
Having regard to all of the circumstances of this case the Court recommends that the Claimants be paid compensation in the amount of €2,000 each in full and final settlement of all claims whatsoever made or arising against the Employer under the Industrial Relations Acts 1946 – 2004.
The Recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
24th May, 2006______________________
MG.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.