FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : AN POST - AND - A GROUP OF UNIONS DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Service Days
BACKGROUND:
2. The claim before the Court is for the reintroduction of service days lost as a result of the Organisation of Working Time Act, 1997. The Unions are seeking one extra day's leave after 5 years service and a second extra day's leave after 10 years service as was the situation prior to the Act. Following the introduction of the Act the Company increased the minimum annual leave entitlement to twenty days and abolished all entitlements to service leave. The Unions argue that service leave is earned by the accrual of service and should not be regarded as part of the normal annual leave entitlement. Service leave is one of the conditions of employment and the Company are not entitled to remove this without discussions or agreement with the Unions. The Company rejects the claim as it is cost increasing. The Company argue that the costs involved are not affordable or sustainable.
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 could not be reached, the dispute was referred to the Labour Court on the 18th July, 2007. A Labour Court hearing took place on the 1st November, 2007, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1 Service leave predated the Sustaining Progress Agreement. The Company withdrew the leave without consulting or agreeing this with the Unions. The Unions are seeking reinstatement.
2 The Change Agreements already concluded with the Unions have no relevance to this claim. This claim for restoration has been processed separately by the Unions since December 2001. The Company did not seek to have the issue of service leave dealt with as part of the Change Agreements.
3 Service leave is earned by the accrual of service and should not therefore be regarded as part of the normal annual leave entitlement.
COMPANY'S ARGUMENTS:
4. 1 The claim is clearly cost increasing and is precluded under Clause 1.5 of the Sustaining Progress Agreement and under Clause 1.4 of Towards 2016 Agreement.
2 The Company has concluded a series of change agreements with the Unions under which leave arrangements have been restructured.
3 Any increase in the annual leave allowances would reduce the level of savings accruing to the Company. In these circumstances it would be necessary to carry out a review of the financial arrangements underpinning the agreements and the level of change allowance being paid.
RECOMMENDATION:
In previous cases the Court has taken the view that an increase in the statutory entitlement to annual leave could not provide a basis for a claim for improvements in the leave entitlements of those who are already at or above the new statutory entitlement.
There are, however, factors in the present case which distinguish it from the generality of cases in which this issue arose previously. It appears that the custom and practice within the Company is that service leave has never previously been affected by adjustments in basic annual leave. That custom and practice was carried over from the Civil Service and applied by the Company in the same way as it operates in the Civil Service. Their service leave continues to be provided regardless of adjustments in statutory leave entitlements.
Taken together these factors support the Unions' contention that service leave has always been regarded as separate from annual leave.
In the Court's view the resultant position within the Company is somewhat anomalous relative to the practice in industry generally where increases in basic annual leave would not result in a benefit to those who are already at or above the new entitlements.
The Court recommends that the parties enter into negotiations with a view to reaching agreement on how the present situation should be dealt with and if the prior practice within the Company can be brought into line with the practice in industry generally. These negotiations should also have regard to the position since the service days were subsumed into annual leave.
Signed on behalf of the Labour Court
Kevin Duffy
3rd December, 2007______________________
DNChairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.