FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DAWN DAIRIES - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Payment of overtime for all hours worked over 39 Hours
BACKGROUND:
2. Dawn Dairies is a wholly owned subsidiary of Kerry Foods and the case before the Court concerns the Renmore Plant where Van Sales Drivers are seeking the payment of overtime for all hours worked in excess of 39 hours. Their job entails driving, delivering dairy products to both private and commercial customers, taking payments and processing new orders. The payment structure is made up of basic rate of pay and commission, a meal allowance and expenses are paid when these are incurred. The overtime issue was first raised in 2006 and discussions have continued ever since without resolution. Management proposed the use of Hand Held Terminal Records, GPS and Tachographs in order to verify the hours worked but the figures presented proved to be inconclusive.
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 21st February, 2008 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 23rd July, 2008 in Westport.
UNION'S ARGUMENTS
3. 1. Overtime pay is the accepted norm across the Industry for hourly paid Workers, rates may vary but the principle does not. The Company has a written agreement in place for Drivers which outlines the overtime structures.
2. Management have already accompanied Van Sales Drivers while doing their rounds and the information gathered has also verified the extended hours that have to be worked in order to complete their weekly routine.
COMPANY'S ARGUMENTS:
4. 1. All aspects of the job can be done within the normal 39 hour working week This 'vansales' model has been successfully operated since 1983 and each operator has full discretion over the length and duration of his working day.
2. Management do not have a requirement for a Van Sales Driver to commence or finish their round at any particular time as this is adjusted for such purposes as efficiency, optimisation of time and customer's requirements by the Worker himself.
RECOMMENDATION:
The Court is satisfied that contractually and by custom and practice the Claimants do not have fixed hours of work and that their working time is determined by the exigencies of the job. Accordingly they are not in a category to which overtime payments apply.
For this reason the Court does not recommend concession of the Union’s claim
Signed on behalf of the Labour Court
Kevin Duffy
12th August, 2008______________________
JFChairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.