FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : CALOR GAS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Payment for holidays.
BACKGROUND:
2. The Company is involved in the sale and delivery of gas in the Munster area. The issue in dispute relates to 28 worker drivers and to the calculation of the rate of pay for holidays. The Union is seeking that holiday pay be calculated based on the average weekly pay rate over the previous 13 weeks worked. The Union’s view is that payment made for Saturday working, which occurs approximately 30 weeks of the year should be included in this average calculation.
The Company agreed to calculate the holiday pay based on the average weekly pay rate from Monday to Friday over the previous 13 weeks but excluding Saturday, as the payment for Saturday is made up of an allowance of €70 in addition to payment per kilometre and payment per load delivery. The Company’s position is that Saturdays should not be included for holiday calculation purposes as it is not a normal working day.
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 24th August, 2005 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 1st March, 2006 which was adjourned to allow the parties resolve the matter. The matter was not resolved and the parties requested a further Labour Court hearing which took place on the 20th September, 2006.
UNION'S ARGUMENTS:
3.1 Saturday work is regular and rostered during the peak or winter period.
2.If Saturday work was deemed to be overtime, the Labour Court has in the past recommended that overtime be included where it can be shown that the overtime is regular and rostered.
3. Payment for Saturday is based on normal rates plus an allowance, and not at overtime rates which are payable on call outs.
4. Working on Saturdays is not optional. It is in fact essential to the survival of the business during the peak period.
COMPANY'S ARGUMENTS:
4.1 The Company argues that the Union's claim for the inclusion of overtime in the calculation of holiday pay is both unrealistic and unsustainable both in terms of the drivers contracts of employment and on any reasonable interpretation of Section 20.
2. The Employees work five days per week, but may work, overtime on the sixth day during the winter months of the year. They receive a higher rate of pay for working on Weekends.
3. The Contracts of employment of the Employees provide for the purposes of holiday pay, they"will be paid at the ....current basic weekly rate of remuneration. The Basic weekly rate of remuneration is defined as thirty nine times the basic hourly rate as specified in the Remuneration Addendum".
4. The effect of the Union's claim for the inclusion of overtime in the calculation of holiday pay essentially amounts to a request from the Union that the Court would change existing Statute Law and regulations, which expressly provide for the exclusion of overtime in such calculation.
5. In order to resolve the matter the Company offered in writing an ex gratia payment of €1,500 for each employee in an attempt to finally settle the matter. This offer was rejected by the Union.
RECOMMENDATION:
The claim before the Court under section 26 (1) of the Industrial Relations Act, 1990 relates to the calculation of pay for annual leave purposes. The Union sought the inclusion of Saturday payments in the calculation. The Company rejected the claim, stating that Saturday working is overtime in that it falls outside the normal contracted hours for which a premium is paid. To resolve this issue the Company offered to pay average earnings, calculated over the previous 13 weeks for all holidays including company holidays and public holidays. The offer also included a once off payment of €1,500 to each individual employee employed prior to 1st June 2005.
Having considered the views of the parties expressed in their oral and written submissions, the Court is of the view that the Company’s offer as set out in its letter to the Union dated 7th March 2006 is fair and reasonable and should be accepted by the Union. However, the Court also recommends that “all holidays including company holidays and public holidays”taken by the claimants during 2006 should be assessed in terms of the Company’s offer and paid in accordance with the terms of that offer.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd October, 2006______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.