Complainant

Respondent

Anonymised Parties

A General Operative

A Materials Business

Representatives

Martin Corbett SIPTU

Eileen Hayes, Hallissey & Partners Solicitors

Act

Dispute Reference No.

Date of Receipt

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

CA-00031717-001

21/10/2019

This claim arising under the Industrial Relations Act 1969 was lodge by the Union in October 2019. The claim is centred on unpaid overtime and is disputed by the Employer, who runs a Materials Business.

The Claimant is a Polish national who is represented by his Union, while the Employer is represented by their Solicitor.

The Union submitted a written submission at hearing and sought to add an unsolicited submission in the aftermath of the hearing which was objected to the employer.

The Claimant commenced work as a General Operative in January 2005, obtaining a contract of employment in November 2005.

Through his Union, he sought payment of €7,932.25 in unpaid overtime. He ceased employment in May 2019.

The Union submitted that the complainant was employed on an 8 am to 5 pm basis where extra attendance on weekdays and weekends attracted additional remuneration.

The Union contended that the claimant had raised a shortfall in the rates paid for ongoing overtime with a named person at the business during 2018 and was refused payment and dissuaded from progressing his claim further. The Union also maintained that the claimant had language difficulties which prevented his actioning the company grievance procedure.

The Union wrote to the Employer on 16 September 2019 and submitted a handwritten claim for monies owed to the claimant. This letter was followed up but failed to generate a response, prompting the Union to refer the case to the WRC.

The Union submitted that the claimant was entitled to receive the rates paid in overtime prior to the rate changes in 2008 as trading had improved at the business to a level which warranted application of the Construction Industry rates of pay.

The Union in referring to a test for objective justification contended that the claimant had not been paid properly for his overtime. He sought full retrospection.

The Complainant addressed the hearing and advanced the argument that the company’s trading status had improved, and he wanted access to the earlier rates. In addition, he contended that when he was based on Large Building Sites that the Large Building Company rates should prevail over those of his employer.

Following the hearing in this case, the Union made another submission which I will deal with later in this Report.

The Employer operates a materials business. The Company Solicitor agreed to amend the Employers legal name for the purposes of this Report.

The Employer rejected the claim for unpaid overtime at the business. The Complainant commenced work on €12 per hour in 2005 and when he resigned in May 2019 this rate had increased to €17.20. The Employment was supported by a contract and a handbook and overtime rates were paid in accordance.

The Employer was aggrieved by this claim on several counts as they understood that they had acted as a responsible employer towards the claimant in supporting him through Gym membership, meals and hotel accommodation when placed away from base and several interest free personal loans. The Employer also hotly contested that the claimant’s nationality had impeded his capacity to raise as grievance as he spoke English fluently.

The Representative outlined that the rates now sought by the complainant had not been paid since 2008 when in a very challenging trading period, the base salary and overtime were revised downwards on agreement for viability purposes. She went on to outline and quantify that overtime was paid for work done

Post 5pm

Post-Midnight, weekends at specific rates.

The Claimant had worked and accepted these specific rates since 2008. These rates were universally applied to the other 13 General Operatives at the company.

The Employer had no knowledge of a claim for upward alignment of these rates and queried why the claimant had not addressed his claim to the Manager responsible for tracking and recording his overtime recorded during his employment? This Manager was known by the claimant to be the correct contact on overtime. There was no immediate plan to re-instate the 2008 rates. The Company did not pay Construction rates.

The Employer took issue with the Union email submitted post hearing.

I have considered the positions set out by both parties in this case. Having reviewed the handwritten dossier of overtime claimed up to December 2018, I inquired into what pathway had been commenced on dispute resolution prior to the hearing? This is important as the Labour Court has frequently pointed to procedural lapses in this regard.

The claimant confirmed that the rate of pay now claimed emanated from the 2008 rate and that the company was well placed to now meet this claim. He had raised it informally but had not processed a grievance.

I was informed by the Union that the Complainants file was passed internally from the collective to the individual rights section of the Union in January 2019. This still left an extended period where the claim appeared to lie dormant (inclusive of the claimant’s resignation) until lodged at WRC on 21 October 2019.

I have not been able to identify if the Union actioned a collective claim for 2008 rates of     overtime restoration in this case. I have not received any documentation from the union which offers a dateline or corroboration for its assertions in that regard and the employer has firmly rebutted that such a claim was ever served. I must on balance accept that the employer position reflects the reality of the situation. I am mindful that there are another 13 workers in the complainant’s grade in the company.

I appreciate that many companies have in recent years begun to examine their trading status across Industries and careful conversations between workers and their employers on pay restoration are not uncommon. However, nothing can be assumed or taken for granted, efforts at pay restoration are by their very nature and in-depth process.

However, in considering the parameters of what I am permitted to investigate in this case, I must refer to Section 13(2) of the Industrial Relations Act, 1969

Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within Part 6 of the principal act, a party may refer it to an adjudicator.

This is clearly a dispute connected with the rate of pay of a body of workers. both parties acknowledged that the uniform overtime rate was revised downwards for the workers in the business in 2008 on agreement. This does not appear to have been conveyed to writing, but both parties accept that the revised rates were paid from 2008 onwards as a stability measure for commercial viability.

The chronology lacks any documentation/ details of Grievance on where the Union has pursued this claim prior to September 2019.

It is this rate that the claimant now seeks to be restored and paid as retrospection. It cannot be viewed as a power of one, it is a collective claim. Such a mammoth task requires negotiation or failing that referral to the correct third-party pathway. It should be addressed during active employment and not post termination.

I received an unsolicited brief submission from the Union post hearing. I gave the parties an extended period to advance their case at hearing and to call on their respective delegations to assist in that presentation. This was completed with the full participation of those present at hearing and I am not able to accept submissions from those not present.

I cannot take this matter further as my jurisdiction does not allow it. The claim concerns a body of workers and is prohibited by Section 13(2) of the Act.

I have not found merit in this dispute.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have not found merit in the dispute.

Pay Determination