Complainant

Respondent

Anonymised Parties

A Worker

A Company

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-00029417-001

02/07/2019

This dispute concerns an aspect of an earlier pay agreement reached between the Complainant and the Respondent which was signed by the parties on 3/1/2007 and 21/12/2006 respectively. The 2006/2007 agreement dealt with basic salary, bonus payments, back-pay and week-end working. This dispute relates to the latter only - ie the allowance payable for weekend working.

The Complainant has been employed with by the Respondent for in excess of thirty eight years. His role and duties are within the transport co-ordination section of the company which involves working at weekends. The Complainant contends that over the course of a year he works on average 26 weekend days or bank holidays and that this is a contractual requirement for a Transport Manager and is regular and rostered time.

The 2006/2007 agreement stated as follows:

“Weekend working: €300 per weekend day or Bank Holiday. Each transport manager agrees to work one weekend day without pay, probably in the December/January period as these are the least busy weekends.”

The Complainant wrote to the company by email of the 2nd May, 2007 and stated:

“Re Weekend overtime payments

Could you just check something for me when you get a chance.

We received +2% on Salary in April 07.

But we noticed that this was not applied to the Weekend Overtime payments.

Note:

I know that we did not discuss this element during recent negotiations but I understood that these payments would also be subject to any future wage increases”

It is the Complainant’s position that over the years he has unsuccessfully sought to have the 2006/2007 agreement reviewed with regard to the weekend allowance aspect. He contends that as a result, he has not received any increases to the weekend allowance and nor have any of the national wage agreements been applied. The Complainant stated this is contrary to the EU’s Working Time Directive and the Organisation of Working Time Act [1997-2017] in relation to Sunday working.   The Complainant further stated that other managers in the company have had pay increases applied to their weekend allowances.

The Complainant is seeking:

·         A gross amount of €15,500 which he has quantified as being the cumulative loss he has suffered as a result of the non-payment of any national wage agreements or incremental increases to the weekend allowance;

·         That the current weekend allowance rate of €300 would be increased to €381 to take account of national wage agreements since the 2006/2007 agreement;

·         That the weekend allowance would reckon for pension purposes.

It is the Respondent’s position that the 2006/2007 agreement did not make any provision for the application of national wage agreements to the weekend allowance and that had this been intended, it would have been explicitly stated similar to the aspect of the agreement which dealt with basic salary. In this regard the Respondent cites the email from the Complainant to the company of the 2nd May 2007 which it stated “indicates by admission that there was no discussion or agreement regarding NWA increases to the Weekend Working Allowance….” The Respondent stated there was no further correspondence on the matter at the time and that the 2006/2007 agreement was not amended. The Respondent contended that the Transport Managers had the benefit of an element of built-in weekend compensation since 2000 as arising from previous negotiations, basic salary was enhanced to incorporate weekend overtime and the resulting revised salaries attracted any increases due under national wage agreements and incremental pay increases. The Respondent submitted that the weekend allowance was a fixed sum allowance and was always intended as such, that it was related to the nature of the work and was not deemed to be compensation for overtime hours worked.

The Respondent stated that it had never implemented the aspect of the 2006/2007 agreement related to working one weekend day without pay and that the Complainant has had the benefit of payment for these days since that time.

The Respondent stated that NWA increases were applied to salary and bonuses, but it rejected the Complainant’s claim that the weekend allowance was anything other than a fixed sum amount or that it was intended to attract any NWA pay increases. It also rejected the Complainant’s claim that any proposed increases should be backdated to 2006/2007. It further stated that there was no claim for incremental pay increases.

The Respondent also rejected the claim that the weekend allowance should reckon for pension purposes and it submitted that as a matter of policy throughout the company, weekend payments were not pensionable.

I have considered the written and oral submissions in relation to this matter including the correspondence of the 15th and 17th May 2019 exchanged between the Respondent and the Complainant. In addition, at the adjudication hearing there was some constructive discussion as to how this matter might be resolved. Taking all these matters into account, I find that:

·         There is no evidence to suggest that the 2006/2007 agreement made provision for any NWA increases to be applied to the weekend allowance of €300. That being said, the Complainant’s email of the 2nd May 2007 confirms this was an issue for him from the very outset. At the adjudication hearing, the Respondent indicated that it would be willing to pay “a nominal amount” to resolve this matter;

·         In relation to the application of NWAs to the weekend allowance going forward, having considered all the submissions, this in my opinion is reasonable. In this regard, I note the Respondent’s position that any review of this aspect of the 2006/2007 agreement would entail a review of weekend working arrangements and this was accepted by the Complainant;

·         I find the claim that the weekend allowance should be pensionable is not well founded and there is no evidence this was part of the 2006/2007 agreement.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to this dispute and accordingly, I recommend:

·         The Respondent pay a once off ex-gratia payment of €3000 to the Complainant for the purpose of resolving the retrospective aspect of this complaint;

·         That going forward the weekend allowance of €300 be subject to national wage agreements on the same basis as the Complainant’s basic salary. Accordingly, I recommend that immediate discussions commence with the Respondent to implement this having regard to the application of the current national wage agreement in the private sector and the usual pay bargaining mechanisms in the company.

A Worker V A Company