FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : LEITRIM CO. COUNCIL (REPRESENTED BY LGMSB) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Hearing arising from LCR19834
BACKGROUND:
2. The issue before the Court concerns matters arising out of Labour Court Recommendation No.19834 regarding loss of overtime. The two workers concerned are employed by the Council as Water/sewerage Caretakers. It is the Union's Position that both workers engaged in regular and rostered overtime for a number of years and are at significant financial loss since it ceased. The Council's position is that it disputes that either workers overtime was regular and rostered and was in fact, ad hoc.
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 14th January, 2011 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 15th December, 2011.
UNION'S ARGUMENTS:
3. 1 The overtime for both workers was regular and rostered. In the case of the first worker it was over six years at one plant and in the case of the second worker it was at several plants, the longest period being over ten years.
2 It is a well established principle that where regular and rostered overtime over a number of years is discontinued, a payment of compensation arises.
COUNCIL'S ARGUMENTS:
4. 1 The overtime was not regular and rostered. In the case of the first worker, the overtime was ad hoc. He also has regular ongoing overtime which is continuous and amounts to in excess of €12,000 per annum.
2 In the case of the second worker, the claim by the Union is excessive and unsubstantiated. His overtime never amounted to the quantum of the claim. It is the Council's view that an individual is not entitled to claim a loss in circumstances where no actual loss occurred. The worker did lose some overtime but it was not regular and rostered as it fluctuated significantly over the years.
RECOMMENDATION:
The net issue for consideration by the Court is whether or not overtime worked by the two workers (Mr Bohan and Mr Beirne) can properly be classified as regular and rostered, thus attracting compensation arising from its discontinuation. There is a dispute between the parties on the period of time over which the overtime in issue was worked by the Claimants and on the extent of their financial loss arising from its elimination.
It is the responsibility of the parties to establish the material facts giving rise to this dispute. In the absence of agreement the only useful recommendation which the Court can make is to set out the general principles that should be applied by the parties to the facts when they are established.
It is noted that the Union's claim is that Mr Bohan regularly worked two hours overtime per week, in the maintenance of Drumsna Sewerage Plant, over a period of six years. If the Union's contention in that regard is correct the Court would consider the overtime involved as regular and rostered.
The Union claims that Mr Beirne regularly worked nine hours overtime over a nine year period in undertaking maintenance work at various facilities, details of which are set out in the Union's submission to the Court. During part of this period Mr Beirne was on extended sick leave. If the Union's contention in respect to Mr Beirne is correct the Court would likewise regard the overtime as regular and rostered. However the regularity of the overtime should be assessed by reference to the time during which this claimant was actually at work and periods of sick leave should be disregarded.
The veracity of the Union's contention concerning the period over which this overtime was worked should be tested by reference to the payroll records over the periods in question. If it transpires that the records support the Union's position compensation at 1.5 times the annual loss should be paid in a single lump sum.
Compensation, if any, should be calculated on the basis of the actual loss in overtime earnings measured by reference to the overtime earnings of each of the individuals in the last full year in which they worked the overtime. In the case of Mr Beirne, the year(s) in which he was on extended sick leave should be disregarded.
The Court so recommends
Signed on behalf of the Labour Court
Kevin Duffy
9th January, 2012______________________
DNChairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.