FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SUPERQUINN - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Of Recommendation Of A Rights Commissioner R-057721-Ir-07/Gc
BACKGROUND:
2. The worker concerned has been employed with the Company since March 2002. He was originally employed as a night shift manager. In April 2003 the worker transferred to the day shift. It is the Union's claim that the worker's re-deployment to the day shift resulted in adverse conditions of employment for him. The Union are seeking the restoration of a €2,000 annual allowance which was withdrawn after the shift transfer. It is also claiming that the worker's payments for public holidays were incorrectly calculated and that conditions for the payment of sick leave have been altered. The Company's position is that the night shift manager contract which the worker joined the Company on originally, clearly states that the Company reserves the right to cease the night shift at any time and re-deploy staff to the day shift at the appropriate rate.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 1st July, 2008 the Rights Commissioner issued his recommendation as follows:
"I recommend that a once off payment of €2,000 be awarded to (worker named) in compensation for loss of the annual allowance. The Company's calculation of pay for public holidays for (worker named) is correct. (worker named) sick leave pay be administered in accordance with that which pertains generally in the company i.e. the arrangements as outlined in the company handbook."
On the 30th July, 2008 the Union appealed the Rights Commissioner's 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 9th December, 2008.
UNION'S ARGUMENTS:
3. 1 The night shift allowance formed part of the worker's monthly wage. As part of the blueprint negotiations on management structures, the worker chose to re-deploy to a new position and retain his existing rate of pay on a red-circled basis. The worker changed from night shift to day shift in April 2003 but the night shift premium was not deducted from his wages until November, 2003. It is the Union's view that this allowance makes up part of the worker's salary.
2 The worker was contracted to work a salaried 47 hours per week. Following re-deployment the worker was required to record his hours. The Company broke down the worker's salary into 39 hours at a flat rate and 8 hours overtime. As a result of this the worker receives payment for 8 hours for a public holiday. It is the Union's view that the worker's payment for a public holiday should be equal to one fifth of his weekly pay as he is contracted to do 47 hours.
3 The worker on previous occasions has received payment for the first 3 days absence from work due to illness. The worker expected that his terms and conditions would not alter on re-deployment. Since re-deployment the Company has changed its practice. It is the Union's view that the worker should have retained his previous terms and conditions relating to sick pay until agreement is reached on a standard sick pay arrangement.
COMPANY'S ARGUMENTS:
4. 1 The worker's hourly rate of pay has not changed since his transfer. The allowance paid to the worker while on night shift no longer appears as a separate payment on his wage slip. It is in fact included in the hourly rate.
2 The Company disputes that any form of agreement existed between the worker and the Company or the store manager concerning being paid for the first 3 days of sick leave.
3 The Organisation of Working Time Act 1997 provides the mechanism for calculating the rate of pay for public holidays. As per this Act, the worker is not entitled to overtime pay for a Public Holiday.
DECISION:
Having considered all matters pertaining to this case, the Court endorses the Recommendation of the Rights Commissioner and dismisses the appeals.
Signed on behalf of the Labour Court
Raymond McGee
21st May, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.