FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEATONS LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal of Recommendation of a Rights Commissioner R-082614-IR-09
BACKGROUND:
2. The issue before the Court concerns a claim by the Union on behalf of a member in relation to alleged breaches of the Registered Employment Agreement (REA) for the retail sector in which the Claimant is employed. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 14th June 2010, the Rights Commissioner issued his Recommendation as follows:
"In relation to the appropriate time or period for consideration of complaints, I consider there is considerable merit in the submissions made by IBEC. While there are no specific detailed time limits laid down in the Industrial Relations Act (unlike most if not all other Labour Law), it is commonly accepted that a worker or their trade union should submit claims/complaints in 'good time' and without undue delay. It is generally accepted in industrial relations that a claim only commences from the date it is first initialised by a worker or their trade union. In labour law generally, complaints or claims are usually confined to a period of six months prior to the date of the lodging the complaint with the Rights Commissioner Service (on 5th August 2009 in the current case), with provision for some limited extension of that period where 'exceptional circumstances' or 'reasonable cause' prevented the claimant from making the complaint/claim sooner, and I note that no such submissions were made to me. There was nothing to prevent the claimant or Mandate on her behalf from submitting her complaint/claim at any time since she commenced employment on 22nd October 2007. In all circumstances I have concluded that the appropriate releveant period for consideration for the purposes of the complaint is from 5th April 2009 (six months prior to the date of presentation of the complaint/claim to the Rights Commissioner).
The purpose of theRegistered Employment Agreement is to create a 'floor' in relation to pay and other matters below which employees in the Sector cannot be paid or treated. The claimant was not disadvantaged or treated less favourably by the employer compared to the terms of the Registered Employment Agreement (and I note that this would still be the case even if her entire period of employment was taken into account). Accordingly the complaint/claim is not upheld and it is rejected.
I so recommend".
On the 24th June 2010, the Claimant 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 20th October 2010.
UNION'S ARGUMENTS:
3. 1. The Union contends that the Claimant was not paid in accordance with the terms of the Registered Employment Agreement (REA).
2. The Claimant had regularly been rostered to work in excess of 37.5 hours and was required to work 6 days over 7 without remuneration for working a rest day.
3. The Union further contends that the terms of the REA cannot be offset against each other and must be applied disjunctively.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer maintains that the Claimant was paid above the minimum pay rate set out in the REA and was advantaged rather than disadvantaged there by.
2. The Employer contends that the Claimant's terms and conditions of employment taken together exceed those set out in the REA.
3. The Claimant was paid a higher amount by the Employer than she would have received if the terms of the REA had been applied to herfor the duration of her employment .
DECISION:
The Court has carefully considered the submissions of both parties.
Background:
The Case concerns a claim by the Union that the company, by refusing to pay the claimant premium rates for working on her day off, are acting contrary to the provisions of a Registered Employment Agreement (REA)Dublin, Dun Laoghaire, Drapery, Footware and Allied Trades Variation Order 2006with effect from September 2006.The worker is also claiming that she is entitled to be paid the appropriate premium rate from the commencement of her employment in October 2007.
The case comes before the court pursuant to Section 13(9) of the Industrial Relations Acts rather than Section 33(1) of that Act which gives the Court jurisdiction to definitively interpret the REA.
Under Section 13(9) the Court is required to make a recommendation that is fair and reasonable in all the circumstances of the case rather than provide a strict interpretation of the REA. It is in that context that this Recommendation is issued.
The Court normally supports the application of the terms of an agreement that governs both parties. In this case the REA provides for a premium rate of pay in respect of work performed on a rest day. The Court would normally apply the provisions of the agreement in a disjunctive manner. Each clause would normally be applied separately to an employee’s terms and conditions of employment.
In this case the Court sees no reason to depart from that practice. Accordingly Court recommends that the company apply the premium rates in respect of rest days that have been worked by the Complainant since the date on which the claim was lodged.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
14th December 2010______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.