ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001320
Dispute for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 | CA-00001797-001 | 07/01/2016 |
Date of Adjudication Hearing: 19/05/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Complainant’s Submission and Presentation:
The complainant contends that the company has withheld payments for overtime not rostered, in contravention of a 2012 Company/Union agreement that stipulated overtime requirements for 12 weeks per year. The agreement stated that those who were not rostered would receive the allowance of €54 per shift. For 2012 and 2013 the employer paid this, however in 2014 they refused. The claim for 2014 and 2015 amounts to 15 nights and 26 nights respectively amounting to the sum of €2,253.77. The complainant further requires that the agreement would be honoured going forward. |
Respondent’s Submission and Presentation:
It is argued that the provisions of the final paragraph of Section 10 of the collective agreement must be read in the overall context of Section 10 which outlines the growing business need for night work and how the arrangements will apply. The relevant paragraph reads as follows:
“In circumstances where 12 weeks of night working cannot be made available to Signal Operatives and Gangers payment of the night allowance will be made up to the maximum of 12 weeks”.
These arrangements were agreed to afford the company better opportunity to plan work and free to roster all Operatives and Gangers for 12 weeks per year. It was the practice in nearly all areas that individuals worked at least 12 weeks of nights. The new arrangements were in effect formalising what already occurred on the ground. Following implementation of the deal a small number of people made a claim for payment. All claims were paid at that stage. However when the levels of night working were checked, to ensure that they fitted both the letter and spirit of the agreement, it emerged that the complainant’s level of night working in 2011 was 17 nights and in 2012, 5 nights. In 2013 he worked a total of 8 nights and received €2,858.44 in compensation. In all 3 years he worked way below the 60 nights he could be rostered for. It was never the intention that individuals who had never worked nights, based on business need would be compensated on the basis of them not doing night work in a particular year that they had never done previously. It should be noted that if this claim is conceded the company would be paying the complainant significant compensation when he has no track record of working nights. It should also be noted that the company has tried to reach an alternative agreement with the Trade Unions but the Unions have refused to discuss any amendments to the agreement.
Decision:
I note the company has tried to reach agreement on an alternative or amendment with the Unions on the issue. However in the absence of any such alternative or amendment, the commitment to make up the payment of the night allowance up to the maximum of 12 weeks contained in the collective agreement is clear. The respondent should pay to the complainant the outstanding difference, and honour the agreement until such time as any amendment can be agreed.
Dated: 26th July 2016