FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HENKEL IRELAND OPERATIONS AND RESEARCH LTD (REPRESENTED BY IBEC) - AND - CONNECT TRADE UNION DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. The application of the long term disability scheme.
BACKGROUND:
2. This dispute relates to the application of the long-term Disability Scheme.
The Union said that the Company is adding the Sick Pay Scheme absence and the Long-Term Disability Scheme absences together to calculate absences. This in contravention of the Company/Union Comprehensive Agreement.
The Employer said that if an employee has over 25 days absence in a rolling 12-month period and returns to work, the first 2 days of any subsequent absence is unpaid.
- 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 the 17 April 2019 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on 14 June 2019.
UNIONS ARGUMENTS:
3. 1. A Worker does not have to use the full allocation of days in the sick scheme to be eligible for the Long-Term Disability Scheme.
2. When the Agreement was drafted over 30 years’ ago the wording “separate and distinct” were used to describe the two Schemes.
3 There is no such calculation in the Comprehensive Agreement that says both Schemes can be added to arrive at a joint figure.
EMPLOYER'S ARGUMENTS:
- 1. In calculating if an employee has been absent for more then 25 days in a rolling 12-month person, the absence under both the sick pay scheme and the long-term disability scheme is used.
2. This has been the practice for over 30 years.
3. The purpose of the 25-day rule after the first 2 days of a subsequent absence is unpaid in the sick pay scheme, is to discourage short-term absences on return to work after either a prolonged period of absence or a number of short absences.
RECOMMENDATION:
Background to the Dispute
This dispute concerns the interpretation of a provision in the sick pay policy operated by Henkel Ireland Operations and Research Limited (‘the Company’). The Company’s sick pay policy comes within the scope of a comprehensive collective agreement in place between the Company and individually with each of the three Trade Unions recognised by it: CONNECT, SIPTU and UNITE.
There are two elements to the sick pay arrangements operated by the Company: (i) a sick pay scheme that provides for up to thirteen weeks’ pay for qualifying employees in a rolling twelve-month period; and (ii) a long-term disability scheme that provides for up to twenty-six weeks’ pay in certain circumstances.
The sick pay policy provides that if an employee has been absent for twenty-five days in a twelve-month rolling period, the first two days of any subsequent absence are unpaid. The Union submits that for the purpose of this provision only absences on the (short-term) sick pay scheme should be counted. On the other hand, the Company submits that absence under both the sick pay scheme and the disability scheme can be aggregated to determine if an employee has been absent for twenty-five or more days in a rolling twelve-month period.
It appears that the issue in dispute was first raised by a CONNECT member as an individual grievance through the Company’s Grievance Procedure in February 2018. Nevertheless, the issue was not raised as a collective issue or at all by CONNECT in the course of the nine-months of negotiations the preceded the renewal of the collective agreement between it and the Company in June 2018, although the latter period clearly overlapped with the period during which the individual grievance was being processed. The Company spokesperson told the Court that a review of the Company’s implementation of the twenty-five-day rule since 2010 had been carried out in preparation for the within hearing. The review found that – excluding the claim in 2018 referred to above – the Company had had four previous cases of unpaid absence under the sick pay scheme by CONNECT members following long-term disability in a rolling twelve-month period. In three of the four cases, the first two days’ sick leave taken by the employee concerned when they next went on sick were unpaid i.e. the twenty-five-day rule was applied. The Company conceded that one employee was paid in error in similar circumstances.
Recommendation
The Court notes that only one of the three recognised Trade Unions is a party to the within dispute. The Court further notes that CONNECT had ample opportunity to raise the within issue in the course of the extensive review of its collective agreement with the Company prior to June 2018 but didn’t do so.
Having carefully considered both Parties’ submissions, the Court finds the Unions’ claim to be without merit,
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
17 July, 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.