FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BAUSCH & LOMBE IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY TECHNICAL ENGINEERING AND ELECTRICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. An appeal of a Rights Commissioner’s Recommendation r-129894-ir-13/EH.
BACKGROUND:
2. The Claimant began his employment with the company in 1993 as a maintenance day fitter. When he began his employment there was an existing agreement between the TEEU and the company on pay and benefits signed by the parties in 1992. The agreement contained a buyout of allowances and of Saturday overtime. The Claimant applied for a weekend technician position (Saturday and Sunday plus one or two days midweek – 39 hours) and claims he is entitled to the buyout of his allowances and Saturday overtime as part of the agreement.
- The Employer said the Claimant applied for the position of his own volition. He was informed by his manager that as he was moving to weekends on a voluntary basis, this was not a compulsory situation and therefore he did not qualify for a buyout.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 13th August 2013 the Rights Commissioner issued the following Recommendation:-
- I note that the agreement referred to was applied in the period 1992 to 2000. I find that the original agreement refers to compulsory buyouts. I find in this case it was voluntary. I find in the original agreement it refers to “now” which I understand to refer to 2000, not the present time. I find that “Offer & Acceptance” are fundamentals of any agreement. In this case I find that the Claimant was offered and he accepted the transfer to weekend shift and as a consequence he knew that he would not get a buyout.
On the 6th September 2013 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 the 4th March 2014.
UNION ARGUMENTS:
3. 1. The Claimant is entitled to compensation as per the current 2000 agreement for mandatory Saturday buyout and standby allowance/on call payments buyout.
2. In the past, four technicians have successfully applied for shift roles and have received the compensation as agreed under the 1992 and 2000 agreements.
3. The 2000 agreement clearly states that the agreement applies to the future as for the basis for calculating the actual hours for the buyout “if the compulsory buyout happens after July 2001 then the previous 12 months apply from the date of buyout”
EMPLOYER’S ARGUMENTS:
4. 1. The Claimant applied to move to weekends and was aware that as it was voluntary he would not qualify for any buyouts.
2. The Claimant had the option of staying on the day-shift when he was aware he would not qualify for a buyout.
3. It is well established that when moving on a voluntary basis to a different pattern, hours, etc. buyouts do not occur. Over the past 10 years 50 employees have moved on a voluntary basis from day shift to weekend shift, reducing their working week by 15 hours and no buyout occurred.
DECISION:
This case concerns a claim by one individual who changed voluntarily from day shift working to a weekend position. The union, on behalf of the Claimant, contends that he is entitled to a buy-out of compulsory overtime notwithstanding the voluntary nature of the change. In advancing that claim the Union relies of the terms of an agreement concluded with the company in 2000.
Both parties agree that the case turns on the correct interpretation of the 2000 agreement. The role of the Court in interpreting any collective agreement is to give effect to the intention of the parties. That intention must primarily be ascertained from the language used in the agreement.
The Court has carefully reviewed the documents making up the 2000 agreement and it is unable to identify a provision that clearly or expressly provides that employees in circumstances of the Claimant are to be entitled, on a continuing basis, to a buy-out where the change in work pattern is voluntary. Rather, the Court believes that the wording of the agreement is more supportive of the proposition that it was intended to cover particular individuals at a particular time and was not intended to have continuing or on-going effect.
In these circumstances the Court does not recommend concession of this claim.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
14th March, 2014.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.