FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EMERALD ELEVATOR SOLUTIONS LIMITED - AND - TWO WORKERS (REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendations r-068349-ir-08/RG and r-068350-ir-08/RG
BACKGROUND:
2. The Company is a small sub-contracting firm that works for one of the major lift companies. The issue in dispute is the level of the hourly rate which was paid to the two Workers from April 2006 until the end of 2007 and the retrospective pay which is now due to them. The Union claims that the Company was always kept up to date regarding the rate of pay and allowances for Lift Engineers but the Company refutes this assertion.
The issue involves a claim by the Union. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 28th January, 2009, the Rights Commissioner issued his Recommendation, as follows:
"I recommend that the Employer should pay the claimant compensation of €3,479.58 within six weeks of the date of this Recommendation."
On the 10th March, 2009 the Union appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 28th May, 2009.
UNION'S ARGUMENTS:
3 1. The Union's postal records show that a number of mail shots were issued to the Company which outlined the current rates of pay for the industry. There is evidence of a number of e-mails that were issued to all lift companies which gave the rates of pay and allowances for the industry.
2. There is a Registered Employment Agreement covering the Lift Industry under which the Labour Relations Commission sets the pay rates each April and the TEEU forwards these rates to all employers in the Lift Industry in the country.
COMPANY'S ARGUMENTS:
4. 1. The first the Company was made aware of a claim for retrospective pay was in a letter dated 15th April 2008 from the TEEU a full three-and-a-half months after the two Workers left our employment.
2. The Company is not in a position now to go back to its customers and request higher prices for work which was undertaken up to two years ago. In the current economic climate the sum awarded by the Rights Commissioner would put the Company out of business.
3. The Company was aware that negotiations were taking place between the Union and the main lift companies to implement a new agreement and no pay increases were awarded until this agreement was signed.
DECISION:
The matter before the Court concerns an appeal by the Employer of a Rights Commissioner’s Recommendation concerning a claim for retrospection of rates of pay agreed by the majority of companies in the Lift Industry. The Union, on behalf of the Claimant, sought retrospection for the period April 2006 to December 2007.
It was agreed generally within the Lift Industry to pay uniform rates of pay throughout the sector in December 2007 and this Company complied with that understanding. The Union stated that the larger companies in the sector agreed to pay retrospection back to April 2006.
When the TEEU informed the Company at a meeting that some companies in the sector had paid a 5% increase from January 2007, this Company agreed to pay it. However, being a smaller sub-contracting company, it agreed as a gesture of goodwill to pay retrospection back to July 2006, however, that commitment was revoked within a week as the Claimant sought it back to April 2006. The Company indicated at that point that the issue of retrospection would be revisited once it had officially agreed the matter with the Union.
Having considered the position of both sides, the Court is satisfied that this Company has maintained a position since its inception of being generally aligned to the Lift Industry for the purposes of pay and conditions of employment and as soon as it was notified by the TEEU of pay increases due, it complied. However, it held that the Union had not informed it of updated rates due from 1st April 2007. It also held that the Union had not informed it of the retrospective payments claimed until after the Claimant had left the employment and in those circumstances it stated that it was unable to recoup any back monies from its customers.
In all the circumstances of this case the Court recommends that a payment of €1,000.00 should be paid to the Claimant in full and final settlement of the claim.
Therefore, the Rights Commissioner’s Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
18th June, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.