FULL RECOMMENDATION
PARTIES : BD DROGHEDA DIVISION :
SUBJECT: 1.Introduction Of Disputed Roster Effecting Hours Worked And Annual Leave Contrary To Contracts And Collective Agreement 2. Since the elimination, some workers now work longer hours in a given year than others but receive the same pay The change has also affected Workers ability to take two weeks continuous annual leave in July / August. EMPLOYER'S ARGUMENTS: 2. It has always been a feature that some workers would work more hours than others in a given year but this balances out over a period of time. RECOMMENDATION: The matters in dispute arise from the alleged effects of the elimination of a Summer shutdown of two weeks and the consequent elimination of ‘frozen’ rosters as a feature of annual leave taking. The Trade Union contends that the elimination of the shutdown / ‘frozen’ rosters was not agreed. The employer asserts that the practice of a summer shut down was related to operational needs of the business and did not form part of any agreement or contractual entitlement of workers prior to its removal. The Trade Union asserts that an outcome of the elimination of ‘frozen’ rostering is that some workers are obliged to work longer hours than others in a given year while receiving the same pay in that year as those other workers. The employer submits that nothing arising from the elimination of the ‘frozen’ roster has impacted upon the comparative balance of working hours as between workers across any given year. The employer submitted that it has always been a feature of the employment that in any given year some workers would work more hours than others but that this would balance out over a period of time and that this remains the situation. The Trade Union submits that the existence of ‘frozen’ rosters has traditionally ensured that workers across the employment work broadly the same number of hours in any given year and that comparative balance was achieved in the year. The Trade Union has submitted that the elimination of shutdown has affected the taking of annual leave. Traditionally workers who took leave during shutdown, which occurred in late July / early August, had hours deducted from their leave ‘bank’ at the rate of 84 hours per fortnight. The Trade Union claims that all leave should now be deducted at the rate of 8.4 hours per day’s leave. It submitted that, in any event, this had traditionally been the practice in the employment even outside of periods of shutdown. The employer submits that during the shutdown the leave bank of workers who took two weeks leave in the period were deducted 84 hours but that this did not occur outside of the shutdown period. The Trade Union assertion that, traditionally, all leave was deducted at the rate of 8.4 hours per day was not correct as a statement of fact in the submission of the employer. The employer proposed that, as a means to resolve the issue which had been raised, all leave taken between 1stMay and 30thSeptember in any year would, for the future, be deducted at the rate of 8.4 hours per day but that, outside of that period, the rate of deduction would be 12 hours per day as has traditionally been the case. It is concerning to the Court that, notwithstanding what is submitted to have been significant local engagement followed by conciliation at the WRC, simple but relevant matters of fact continue to be disputed before the Court. The parties are disagreed as to (a) whether, traditionally, by the end of a given year no imbalance existed between workers as regards the number of hours they had worked in that year or whether in fact such imbalances had always existed at the end of the year and that balance was achieved over a period of time, and (b) whether, traditionally, in all cases, leave days were deducted from the leave bank at the rate of 8.4 hours or whether in fact such a rate of deduction took place only during shutdown with all other deductions happening at the rate of 12 hours. The Court notes the position put forward by the employer at the hearing that, for the future, it would agree that whenever a worker avails of two week’s leave across the summer period between 1stMay and 30thSeptember, the deduction from the leave bank shall be at the rate that both parties agree occurred at least in the traditional shut-down period, which was 84 hours per two week leave period taken. The Court, as a result of the disputation between the parties on key matters of fact, is unable to conclude definitively that any development in relation to shutdown or ‘frozen’ roster practice has negatively impacted the arrangements already in place in the employment. Specifically, the Court is unable to definitively ascertain that the achievement of balance between hours worked by workers across a 12-month period has been altered or that a practice previously applied whereby, as suggested by the Trade Union, all leave was dealt with by a deduction of 8.4 rather than 12 hours from the leave bank. The Court notes the submission of the employer as regards the operational and business related reasons underpinning the proposition that a Summer shut-down is not appropriate into the future having regard to the employment’s competitive and operational circumstances. Having regard to all of these matters, the Court recommends as follows: That the parties accept that an annual Summer shut down will not, for operational and commercial reasons, occur for the foreseeable future That the rate of deduction from the leave bank (84 hours for two weeks holidays) which previously applied to the shutdown period should apply to any situation where a worker avails of two weeks holidays in the period from 1stMay to 30thSeptember. That every effort be made to facilitate workers who wish to take two weeks leave in the months of July and August and that both parties should co-operate to achieve this outcome. The parties to jointly review experience in relation to this matter in September 2023. That the parties should jointly establish, with the assistance of an independent expert if necessary, whether, as a matter of fact, any significant development has occurred as regards the balance between the comparative level of hours worked per annum by workers or whether, broadly speaking, no significant change has occurred. Having established the facts, the parties should engage to review the matter in dispute and seek to achieve resolution of any outstanding such matter through procedures if necessary. That the parties should jointly establish whether traditionally a practice existed whereby all leave was deducted from the leave bank at the daily rate of 8.4 hours or 12 hours. Having established the facts, the parties should engage to review the matter in dispute and seek to achieve resolution of any outstanding such matter through procedures if necessary. The Court so recommends.
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