FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : IARNROD EIREANN - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Unilateral withdrawal of Availability Allowance
BACKGROUND:
2. The dispute concerns the withdrawal of an "availability allowance" to four workers (engineering operatives - EOs) at Cork Maintenance depot. In 2001 the Company agreed new work arrangements with staff to maximise output and in 2003 the workers received a 10% of basic pay allowance to remain on-call, cover all exigencies and ensure availability of services. The Company's case is that it was only during negotiations for a New Deal agreement in 2008 that it became aware that the allowance was being paid to the four workers and that it had been approved by a manager without a central authority. The Company stopped the allowance in January, 2009. The Union claims that this was done without any consultation.
The dispute was referred to the Labour Relations Commission (LRC) and a conciliation conference took place. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 23rd June, 2009, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 9th April, 2010, in Cork.
UNION'S ARGUMENTS:
3. 1. The Company made no reference to the allowance prior to its withdrawal in January, 2009, and there was also no mention of it in the 2008 New Deal agreement.
2. The Union cannot understand how the Company was not aware of the allowance as the payments made under it amounted to considerable sums over a number of years.
3. The withdrawal of the allowance was not known in advance of the 2008 New Deal agreement as the Company claims.
COMPANY'S ARGUMENTS:
4. 1. The allowance was flawed in two ways; (1) it was unauthorised and (2) it was being paid to ensure the availability of workers to answer emergency calls outside normal working hours. This is despite the fact that no individual was rostered for such availability or had to hold themselves on-call to be available for emergency calls.
2. Part of the 2008 New Deal agreement included payment for loss of earnings to the workers concerned. Included in the calculation was any loss associated with the withdrawal of the availability allowance. The Union was made aware that the allowance would be withdrawn.
RECOMMENDATION:
The Union’s claim made on behalf of four engineering operatives concerns the Company’s withdrawal of an “availability allowance” in the Mechanical Engineering Department in the Cork depot. The Union claimed that the allowance was unilaterally withdrawn by the Company.
The Company submitted that the allowance was withdrawn as part of a new agreement which introduced new 24/7 rosters, thereby eliminating the need for an “availability allowance”. In any event, the agreement included a buy-out of loss of earnings. Furthermore, it maintained that it was made clear locally that the allowance would be withdrawn.
The Court notes that the agreement, which was completed at national level, included a compensation formula for loss of earnings - with a maximum pay out award of €30,000. However, the “availability allowance” was unique to the Cork depot and, in similar circumstances in Portlaoise, such loss of earnings were dealt with separately to the agreed national compensation formula. In all the circumstances, the Court recommends that the loss of the “availability allowance” should be compensated in a similar fashion to the Portlaoise arrangements.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th May, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.