FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : SMURFIT KAPPA (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Reimbursement of underpayments for Public Holidays.
BACKGROUND:
2. Smurfit Kappa Cork is part of the Smurfit Kappa Ireland manufacturing group whose primary business is the production of corrugated packaging.
The claim before the Court concerns 100 employees represented by SIPTU at the plant on Pouladuff Road, Cork. The Union claims that the employees concerned have not received correct Public Holiday payments for a period of nine years from 1997 to 2006.
Since 1997 and the advent of 12-hour shifts at the plant Union representatives have raised the matter of incorrect payment on Public Holidays. In January and February 2006 the Union raised the matter formally at local negotiations with the Company and insisted that the Company correct this and agree to pay staff on a 12-hour roster in line with their entitlements under the relevant legislation.
In May 2006 the Company agreed and the payment began in August 2006. The Company, however, claims that it was advised that it did not have to pay retrospection.
- 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 12th July, 2007, in accordance with Section 26(1) of the Industrial Relations Act. 1990. A Labour Court hearing took place on the 14th November, 2007.
UNION’S ARGUMENTS:
3. 1. In 1997 the Organisation of Working Time Act came into being. The Union maintains that the Company accepted that from that date forward its position regarding Public Holiday payment for this group of workers was “out of line with current employment legislation”.
2. During those 9 years the shift workers at the Company endured a loss of 4 hours' pay in every week on which a Public Holiday occurred during which they were rostered to work and upon which the Company closed for business.
- 3. The Union maintains that the Company has benefited substantially from the commitment of the workers over the relevant years and that the Company has failed to pay these workers in line with their legal entitlement under current legislation.
COMPANY’S ARGUMENTS:
4. 1. Following the introduction of a local house agreement covering the introduction of three shifts both the Company and the Union had an agreement to treat Public Holidays as 8 hours. This was subsequently not raised nor contested during further negotiations resulting in a new house agreement in 2003.
2. In 2006 the Union brought to the Company’s attention that the arrangement was in fact contrary to legislation and the Company accepted and rectified the Public Holiday payments immediately.
3. The Company maintains that from a legislative perspective in respect of compensation it should not be paid earlier than 6 months prior to the date of claim.
RECOMMENDATION:
The issue before the Court concerns the Union’s claim for reimbursement of underpayments in respect of Public Holidays for a period of nine years. Payment for Public Holidays for 12-hour shift workers was agreed between the parties in 1997 but was subsequently rectified in 2006 when the parties realised that these arrangements were not in compliance with the Organisation of Working Time Act, 1997.
In June 2006, the Company rectified the situation whereby payment for those workers rostered to work a 12-hour shift on a Public Holiday had been paid at eight hours instead of 12 hours. While the Company closed on the Public Holidays, those rostered to work on the day lost out as a result of the arrangement agreed in 1997.
Having considered the submissions of both parties, the Court is of the view that retrospection should be paid to those Claimants whose pay was deducted by four hours on a Public Holiday, retrospectively for a period of six years, prior to June 2006. The Court recommends that the retrospective payments due should be phased in and paid over a period of time, agreed between the parties, but not later than 31st December 2008.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th January, 2008______________________
Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan; Madelon Geoghegan/entemp, Court Secretary.