Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009763-001

17/02/2017

The Respondent, which operates in the manufacturing   sector, currently employs approximately 230 employees. That number includes   10 Chemical Technicians, of which the Complainant is one.

The Respondent operates a number of shift patterns for the Chemical   Technicians, as follows:

•   Permanent Day Shift (8:00 am to 4:30 pm)
•   Permanent Evening Shift (4:30 pm to 12:30 am)
•   Permanent Night Shift (12:30 am to 8:00 am)

The Complainant works a unique shift as follows:

•   8:00 am to 5:00 pm on   Tuesday/Wednesday/Thursday,
•   8:00 am to 1:30 pm on Friday and
•   12:00 am to 8:00 am on Monday.

The Complainant receives a 33% shift premium for the   12:00am/8:00am shift on a Monday.

The Complainant’s Trade Union representative stated that   the Complainant is the only person working this unique roster. The Trade Union contends that the very nature of the hours of work is a shift pattern and should command the premium rate of 33% on all hours worked by the   Complainant.

The Trade Union further contends that, in the event of the   full shift premium being paid for all hours worked, other people working the   day shift would be more likely to agree to a roster between them where each   person would only work such a shift every 5 weeks.

It was submitted that in the event the Complainant is   compelled to continue to work such a shift pattern there is a very real danger of stress setting in. It was contended that, in such an event, the company would be responsible for the Complainant’s well-being under Section 8   of the Safety, Health and Welfare at Work Act 2005. In this regard, the Trade   Union also highlighted the Respondent’s responsibilities under Schedule 3,   General Principles of Prevention Section (4).

It was contended on the Complainant’s behalf that he   constantly feels “jet lagged” due to the changing pattern/cycle of the shift. It was further contended that this is having a major effect on the   Complainant’s well-being and health.

In conclusion, it was claimed on behalf of the Complainant   that there is no financial burden involved for the Respondent in what is   being sought as a remedy for this scenario. It was further submitted that   what is being sought is not disproportionate when considered against the   Respondent’s obligations with regard to the Complainant’s health.

On that basis, the Complainant’s Trade Union   Representative requested a recommendation that:

1. The entire shift pattern/cycle commands the rate of 33%.
2. The other workers on the day shift be allowed to apply for this shift   pattern/cycle.

The Trade Union Representative submitted on behalf of the   Complainant, that, in introducing the above arrangement, the Respondent would be abiding by their responsibilities concerning the working environment and   the influence on the Complainant’s health.

In response to the complaint raised, the Respondent stated   that the facts of the case were not in dispute. However, the Respondent   stated that the issues previously raised by the Complainant were all   addressed internally, save for one issue in relation to a temporary transfer   for the duration of the maternity leave.

The Respondent stated in submission that the claimant had   never raised the issue of shift premium in line with the normal industrial   relations process, which requires the Complainant to exhaust all internal   process before referring the matter externally. Consequently, the Respondent   contends that the matter is not properly before the WRC given that internal   procedures have not been exhausted in line with Section 22 of the Company   Agreement. However, without prejudice to the foregoing, the Respondent   addressed the issues contained in the complaint.

The Respondent stated that the Complainant works one night   each week and therefore receive a generous night shift premium (33%) for hours   only worked at night at the same value as other night workers.

The Respondent further stated that Section 8 of the   Company/Union Agreement provides that shift premiums are only applicable in   instances of “Permanent Evening Shift” and “Permanent Night Shift”. The   Respondent submitted that there is no daytime premium, but that in the spirit   of the agreement, the Complainant receives a premium for the night he works.

In summary, the Respondent requested that the   Complainant’s claim be rejected.

Having carefully considered all the evidence presented and representations made at the hearing, it is clear that the Complainant’s complaint is firmly based in his dissatisfaction with his current work   patterns. The evidence presented by and on behalf of the Complainant, suggests that he finds the 12:00 am to 8:00 am (Sunday night/Monday morning),   in particular, to be having a negative impact on his sleep patterns and to be   socially restrictive in terms of his time off at weekends.

I am satisfied that the Complainant’s concerns/position in   relation to his situation are very genuine. It is also clear that the   complainant has diligently worked this pattern for almost three years. Evidence presented at the Hearing suggests that during this time period, the   Complainant has sought the cooperation of his colleagues, on the day shift,   with the view, to them agreeing to participate in a broader roster system   which would alleviate the permanent, repetitive and permanent nature of his   shift pattern. However, his efforts in this regard appear to have proved unsuccessful.

Having carefully considered this situation, I do not   accept that it is feasible or appropriate to accede to the request, made by   the Trade Union, on behalf of the Complainant, that the shift premium of 33%   should apply to the daytime element of the Complainant’s working week. It is   clear that shift premiums apply to work patterns involving attendance outside   the normal daytime working hours. Consequently, it would be inappropriate to   apply a shift premium to any work that is conducted during normal daytime   hours. Therefore, I am not in a   position to recommend such an outcome.

However, having discussed the matter in detail with both   sides, it is clear that the solution to the Complainant’s situation lies in   the creation of a roster system which spreads the requirement for the   Sunday/Monday (12:00 am to 8:00 am) shift attendance over a greater number of   the Chemical Technicians.

The Trade Union indicated that such an outcome would be   acceptable provided it was a seven person roster, which included the four   Chemical Technicians on the day shift and the three Chemical Technicians on   the evening shift. Under this system each member of the roster would cover   the Sunday/Monday (12:00 am to 8:00 am) shift one week in seven.

The Respondent stated that the inclusion of the three Chemical Technicians from the evening shift in a seven person roster pattern would cause insurmountable operational challenges for the company, as it would leave them in a situation where, in three out of every four weeks, they could potentially be left in a situation where they did not have sufficient   resources to keep the processes running.

Having carefully considered all of the options I am satisfied that the most appropriate and workable solution is the creation of a four person roster, which would involve all four Chemical Technicians (which includes the Complainant) on the current day shift. This has the dual benefit of addressing the Complainant’s situation, which is, after all, the basis of the complaint before me for consideration, and of preventing the potential operational challenges that will be encountered by the Respondent in the event of the current evening shift being included in this roster arrangement.

Having carefully considered all of the submissions made   and, in line with the considerations and conclusions are set out in the   previous section, I recommend as follows:

The creation of a four person day/Sunday night – Monday morning   shift, to include the Complainant and his three colleague Chemical   Technicians from the current day shift. This roster can be operated either on (a) a one week in four basis whereby each employee works the Sunday   night/Monday morning shift once every four weeks or (b) a one month in four basis whereby each employee works all of the Sunday nights/Monday mornings in   a month, every fourth month. The 33% premium applies only to the Sunday   night/Monday morning element of the shift.

I am satisfied that this recommendation addresses the   difficulties currently being experienced by the Complainant as a result of   currently being the only person working on the day shift who is also required   to work the Sunday night/Monday morning shift. This recommendation also   relieves any potential operational difficulties that the Respondent might   encounter from a resourcing perspective with any other roster option.

Consequently, I would strongly recommend the acceptance of   this recommendation by all parties, so that the Complainant’s current   challenging situation can be resolved with the good will and cooperation of his   colleagues.

Rosters

Shift Premiums

Health and Safety