FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : BRUSS LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Outcome of Storm Ophelia
BACKGROUND:
2. 2.This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 7th February, 2018 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 23 May, 2018.
3.UNION'S ARGUMENTS:
. 1. Due to Storm Ophelia there was a plant closure and the two members involved in this case opted to avail of unpaid leave. They had already opted for overtime on the Saturday after the plant closure and SIPTU is seeking that the members are paid for that overtime worked. SIPTU argues that the absence was through no fault of their own.
2. SIPTU says that Management allowed the two members to work overtime on the Saturday without informing them that the overtime rate was no longer applicable.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer argues that it would be grossly unfair and in breach of agreed overtime procedures if the two employees were paid overtime when many of their colleagues elected to work the lost hours back on that Saturday.
2. The Employer says that Section 8 of the Company Union agreement makes clear that overtime will only be paid if the employee has worked without absence the previous 160 hours, except in the case of holidays and that this was not the case in this situation.
RECOMMENDATION:
The issue in dispute between the parties is payment of overtime premia to two supervisors for hours worked on Saturday 21stOctober 2017 following Storm Ophelia.
Union’s case
The two workers in question had been asked to work overtime on Saturday 21st October 2017 prior to any announcement in relation to Storm Ophelia. On Monday 16thOctober following a Met Eireann alert it was decided to close the factory in anticipation of the storm and the red alert warning which issued. This impacted on the day shift and the evening shift. Following the storm workers were given the option of working back the time or taking annual leave. This was later extended to include unpaid leave for the hours lost. The two workers covered by this case were due to work the evening shift and opted to take the unpaid leave.
The Company informed workers who opted to work back the time that the day shift could work back the hours on Saturday 21stOctober 2017 and staff on the evening shift could work back their time on Saturday 28thOctober 2017. When the two workers received their payslips for the overtime worked on Saturday the 21stOctober 2017 they discovered they had not received their overtime payment. They raised this with the Employer who maintained that overtime could not be paid until 39 hours had been worked.
Employer’s case
It is the Employers case that in requiring the two workers to have worked 39 hours before the overtime rate applies they are operating in accordance with the Company Union agreement.
Section 25 of that agreement states “that no liability arises due to any loss of wages in the event of emergencies causing closure or lost production” and Section 8 makes clear that overtime will only be paid if the employee has worked without absence 154 hours, except in the case of holidays. In the case of the two workers concerned because of the early closure on the previous Monday they had not achieved those hours.
The Employer accepted that the overtime they worked was arranged prior to the decision to close the factory. It was also accepted that the Workers in question were not told in advance of carrying out the work on the 21stOctober 2017 that that work would not now attract overtime rates.
Having read the submissions of both parties and listened carefully to the oral submissions on the day the Court recommends in the unique circumstances of this case that the two workers be paid overtime for the period in question.
The Court so recommends
Signed on behalf of the Labour Court
Louise O'Donnell
CC______________________
5 June 2018Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ceola Cronin, Court Secretary.