FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : WATERWAYS IRELAND - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Alleged Breach of 2010 Agreement (Pubilc Holiday Working).
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Union on behalf of approximately 19 lock-keepers. The dispute relates specifically to the Union's claim that the Employer is in breach of an agreement formed between the parties in 2010 in relation to the working of public holidays. Management instructed the lock-keepers that no one was required to work on Christmas Day, 2014 and on New Year's Day, 2015. However, a number of lock-keepers worked on New Year's Day despite having been requested not to. Management subsequently refused to pay the lock-keepers the public holiday premium payment.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 12th June, 2015, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 11th August, 2015.
UNION'S ARGUMENTS:
3. 1. The Union contends that Management has unilaterally changed the terms of the 2010 Agreement by instructing Workers not to present for work on two public holidays.
2. The Union maintains that these Workers have always worked on public holidays and are now at a significant financial loss as a result of Management's change to the Agreement.
3. The Union is seeking the retrospective payment of the premium for the Workers that presented themselves on New Year's Day, 2015.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer informed Workers in advance that they were not required to work on the 2 specific public holidays.
2. The Employer maintains that it is not in a financial position to pay Workers who attend work when they are not required to do so.
3. The Employer asserts that it had intended to reduce the number of public holidays to be worked due to budgetary constraints.
RECOMMENDATION:
It is accepted by both parties that those associated with this claim have always been required to work on all public holidays, including the public holidays falling at Christmas.
The Court accepts that the employer thought that it had brought about a change in that arrangement by the 2010 Agreement. However, the employer’s intention in that regard was not sufficiently conveyed in the wording of the agreement or in the negotiations that preceded the conclusion of that Agreement.
It is accepted that the 2010 Agreement was drafted by the employer and submitted to the Union for its approval. A party drafting proposals has a responsibility to ensure that the import of what is proposed is capable of being easily understood by the party to whom the proposals are conveyed.
Against that background and in line with the normal practice of the Court, any ambiguity that exists in the terms of the 2010 Agreement must be resolved against that party who drafted the Agreement. While the Court accepts that the employer did not deliberately contravene the agreement, the Union’s interpretation of the relevant provision must be preferred over that of the employer.
In these circumstances the Court recommends that the Union’s claim be conceded. The Court also recommends that the parties continue their negotiations on the review of the Agreement. If those negotiations do not result in agreement, any outstanding issues should be processed through normal procedures, including a reference to the Court.
Signed on behalf of the Labour Court
Kevin Duffy
19th August 2015______________________
SCChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.