ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002530

Dispute for Resolution:

Date of Adjudication Hearing: 25/08/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and section 13 of the Industrial Relations Act, 1969, following the referral of the dispute to me by the Director General, 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.

Claimants Submission and Presentation:

The claimant commenced work as a mobile ganger in January 1990 .A National agreement was negotiated and agreed between the employer and the Union in 2000.The agreement centred on an 8 week working roster, The core part of which was 44 hours paid per week with a 5 hour floating component .This resulted in the employee owing the company 24 hours of work at the conclusion of every 8 weeks. This 24 hrs is broken down into 2x12 hr shifts in which the company must schedule the employee to work within the 8 weeks .There is a rider to this, when the employee is rostered for night shift, due to continuity of shift patterns without provision for breaks, there is a “burn off “proviso of 2.5 hrs per week from the 24 hours owing. The agreement also provides for an erasure of hours in the event that the employees owe less than 7.48 hrs at the end of the 8 week roster.

The Union contend that the company breached the agreement on 25 July, 2015,when the claimant was deducted 7.48 hours pay instead of erasing the 5 hours he had remaining in accordance with the Agreement .

The Union sought the restoration of 7.48 hrs to the claimant in addition to adherence by the Company to the National Agreement going forward.

Respondent’s Submission and Presentation:

The respondent disputed the claim .The respondent set the background to the claim. The claimant was docked a days’ pay consequent on his refusal to attend for a work shift on 25 July, 2015.

The collective agreement of 44 paid hours per week is broken down into

39 hours   Monday to Friday

2 hours contingency

3 hours weekend/night work

The 3 hours at weekend/night work formed the nub of the issue .These three hours per week are normally reserved for weekend working. An Independent IR Consultant issued binding arbitration reports in September 2009 and April, 2010, which outlined that 30 minutes of these 24 hours should be wiped off for each night shift worked. This eroded into the flexible hours .In addition, there is a similar “ write off “ on leave amounting to 1/5 of the 44 hrs .This amounts to a reduction in the 24 hours obligation by .8 hr or 48 mins.

The company’s position was explained as such as the scope for “ burn offs” and “write downs” in the Agreement that it reduces hours available to the company at the weekend .Consequently, in these areas any weekend working ends up being done as overtime . Management contend that overtime should only be paid once the 24 hrs obligation is served, thus permitting overtime only towards the end of the 8 week reckonable period.

In week 4 of the 8 week roster, the claimant was asked to cover a weekend shift within his 24 hr obligation. He was unable to do this. The company repeated the request in week 5. The claimant informed the company that as he had nights left on his roster, where he would burn off hours, there was no requirement to work a weekend shift .As he had refused to attend for work, 7.48 hours were deducted from him.

The company cited a comparator, who had worked 28 nights, 6 days, 5 annual leave days and one bank holiday. He worked the weekend shift refused by the claimant and secured a 3.8 hr overtime payment .The company require that paid hours are used up prior to overtime payments being necessary.

The company sought a rejection on the claim

1 Unreasonable that contract hours should be paid if work refused.

2. Concession would set a dangerous precedent and potential for knock on claims.

Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 13 of the Industrial Relations Act, 1969 permits me to investigate the dispute and make a recommendation to the parties.

I have listened carefully to both parties in this case. This is an extremely complex agreement and I have read the background papers which served as the backdrop. One line in particular from page 6 of the 2009 Arbitration Report on Night working struck me as apt:

“It is important for both sides that local arrangements, which undermine centrally negotiated agreements, are avoided “

I am being asked to assess the events of week 4 and week 5 as reported by the parties.

On the claimant’s side, I heard that at the time of the second request to work on week 5, the claimant had 19 hrs out of his 24 hrs accounted for, as the minimum day was 7.48 hrs, he did not hold an obligation to serve the 7.48 hrs as the 5 hours float saved him. The nine day notification request to change was not served. He was on nights for the remainder of the 8 week roster He had sought to appeal the decision but it was a “fait accompli” that he was coded “b” for the day, which is synonymous with a deduction in pay .

On the respondents side, I heard that the shift needed cover , that the roster went up the previous Thursday and was therefore a legitimate request .It was a step too far for the company that they were being faced with overtime bills from creative manipulation of the agreement .This was not the spirit of the agreement . The request for the claimant to work on July 25^th 2015 was reasonable in all the circumstances.

This is a case on behalf of an individual; I have investigated it in that vein. I have identified that the company has not relied on a protocol to address the unexpected shortfalls in the roster; therefore there is no set of rules in existence to cover the current set of facts i.e. when a worker cannot cover an unexpected shift request.

I find that both parties would have been better served, had the issue been processed under the grievance procedure or even the disciplinary procedure, if either party believed it was warranted. Instead, I find the action of unilateral pay reduction to be out side a recognised procedure or agreement and should have been incorporated into a progressive procedure .I find that the claimant was unfairly identified for a reduction of 7.48 hrs and it should be restored to him within 4 working weeks.

I believe the company would be better served by addressing this foreseeable instance directly with the Unions for the purpose of agreeing a mutually acceptable protocol .It is clear from the presentation of the parties that the original agreement is” creaking “from augmentations overtime in line with company diversification and it is important that adherence is preserved by the parties.

Dated:   16/11/2016