FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : CLARE MARTS LTD (REPRESENTED BY EMPOWER SOLUTIONS) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Pay claim.
BACKGROUND:
2. The Claimants, who are employed by the Company in a part-time capacity, state that they have inferior pay and service recognition than a colleague. The Company states that the individual is on a higher rate of pay due to exceptional personal circumstances.
This 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 20th December, 2007, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 3rd September 2008 andthe Court undertook a work inspection at the Company’s premises in Ennison the 20th November 2008.
3. 1. The disparity between the Claimants and the Comparator is unreasonable.
2. As the Claimants' work is similar to and interchangeable with that of the Comparator, they should all be renumerated at a common rate.
3.Part-time workers cannot be treated less favourably than full-time workers when they are both engaged in similar work.
COMPANY'S ARGUMENTS:
4. 1.The Comparator is paid a rate of pay which was determined when she worked full-time for the Company.The Comparator subsequently applied to work part-time for personal reasons and this was acceded to by the Company.
2.Although the Claimants are engaged in work which is similar to, and interchangeable with, the Comparator's present work, the Comparator's current rate of pay is determined by reference to the rate applicable to her previous full-time job, which was substantially different to that currently undertaken by the Claimants.
3.This is a cost-increasing claim which is precluded under the terms of 'Towards 2016'.
RECOMMENDATION:
In this case the Union is claiming parity in pay and service recognition between five of its members who are employed by the Mart in a part-time capacity and another worker who is paid at a higher rate.
The employer contends that the Comparator is paid a rate of pay which was determined when she worked full-time for the Company. The Court was told that this person subsequently applied to work part-time for personal reasons and this was acceded to by the Company. The Company accepts that the Claimants and the Comparator are engaged in similar work and are interchangeable but that the Comparator's rate is determined by reference to the rate applicable to her former full-time job, which was substantially different to that performed by the Claimants.
Following the hearing in this case the Court undertook a work inspection at the Company’s premises in Ennis. The Court interviewed three of the Claimants in relation to the content of their work in the presence of representatives of both the Company and the Union. The Comparator declined to meet with the Court. However, a representative of the Company did assist the Court in describing the work of the Claimants and that of the Comparator.
As a result of these interviews the Court is satisfied that the Claimants and the Comparator are now engaged in work which is materially the same. The Court is also satisfied that when the Comparator was employed full-time her duties were broader than at present in that she undertook additional tasks. That, however, is to be expected since it is not unusual for full-time workers to undertake additional work precisely because they work longer hours than part-time workers. In the present case the Court is satisfied that while the Comparator did undertake additional duties while she was a full-time worker her overall job, at that time, was of equal value to the job which she now undertakes and that which the Claimants undertake.
On the basis of this conclusion the Court is satisfied that the rate payable to the Comparator is determined by reference to a rate for full-time work and the rate paid to the Claimants is determined by reference to a rate for part-time work.
This case was referred to the Court under the Industrial Relations Acts 1946 -2004. It appears to the Court that it could have been referred pursuant to the Protection of Employees (Part-Time Work) Act 2001. Different considerations apply when the Court is investigating a trade dispute under the Industrial Relations Acts than when it is adjudicating on a claim based on a legal right under particular statutory provisions within its jurisdiction. Nevertheless the Court must be mindful of the prohibition, in both domestic and European law, on treating part-time workers less favourably than full-time workers when they are both engaged in like work.
Having satisfied itself that the Claimants’ rate of pay is based on their status as part-time workers the Court could not issue a Recommendation the effect of which would be to perpetuate that state of affairs. Accordingly, the Court recommends that the rate payable to the five Claimants in this case be adjusted to the same level as that of the Comparator and that any other differences in regard to service recognition be eliminated. Having regard to the basis upon which this Recommendation was formulated, it should be confined in its scope to the five Claimants in this case and it should not be regarded as having any broader application.
The adjustments recommended should be effective from 1st January 2008.
Signed on behalf of the Labour Court
Kevin Duffy
9th December, 2008.______________________
JMcC.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.