Worker

Employer

Anonymised Parties

Worker

Food Company

Representatives

Barnaba Filip Dorda SIPTU

Judy McNamara IBEC

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-00047146-001

12/11/2021

The worker commenced his employment with the company on or about the 18th of August 2003. There are 700 employees based at the site. The worker is on a fixed shift roster working from 2pm to 10.00am. He is paid a standard base rate of €14.70 per hour, he also has a responsibility allowance and a shift evening allowance of 8.76%.

The worker claims that when he commenced employment with the company all employees in his work area were paid a shift premium. The worker contends that this right to a premium on all shifts is a term of his employment.

The worker wishes to move to the day shift and the premium that applied when he joined the company to those that worked that day shift (6.00am to 2.00pm) should apply to him.

The worker seeks to move to the day shift. He has been informed by the company if he moves to the day shift, he will lose his shift premium. The day shift premium was removed based on a Labour Relations Commission conciliation agreement made in 2014. The worker contends that 2 other employees similar to the facts of his case retained their premium when it was discontinued for new recruits to the company. The shift premium pertains to one area based on the level of responsibility of workers in that area. So the premium reflected that responsibility.

The worker is not seeking to retain his shift premium rather that he be paid the shift premium that did apply pre the Labour Court Recommendation.

The worker relies on a circling agreement reached at the WRC in 2018 and applied to 7 employees which provided for higher payments in the worker’s area as it is an area that carries additional responsibilities.

In an email received on the 8th of July 2022 the worker wished to point out that the employer in their submission maintained that the worker who kept their premium did so arising from an administrative error; while at the hearing the employer stated that in fact the worker was red circled.

The company initially were not able to facilitate a move to the work area requested on day shift. Both the worker and his representative believed based on seniority, that by right he could move to that day shift in the same area.

The company investigated this grievance and were satisfied that no seniority right pertained in this case. It was also the case that no vacancy existed in the area to facilitate a move to the day shift.

In correspondence to the worker dated the 7th of October 2020 the company relies on a term of the conciliation agreement that relates to transfers to day shift:

In the event of any current evening shift employee applying to transfer onto day shift, he/she will be paid 12 months compensation in respect of loss of shift premium on transferring and subject to the transfer request being made within 6 months of the date of agreement.

Any current evening shift employee wishing to remain on the evening shift but wishing to avail of the 12 months compensation for the loss of shift premium can request a change to the 12.50 rate and be credited the compensation on date of change subject to the request being made within 6 months from date of agreement.

The company did accept in the correspondence that in error one employee who had moved during the 6-month window had retained their shift premium.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties.

The Union maintain that no breach of a collective agreement would arise as red circling can apply in this case based on precedent.

The Company maintain that a concession would create a collective precedent and affects a group of workers. In any case the Company contend that the collective agreement precludes concession of the complaint as time has elapsed and no arrangement was ever in place to red circle a shift premium as argued.

Section 13 of the Industrial Relations Act 1969 states:

13.—

(2) 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 the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

Based on the facts presented at the hearing as this is a dispute that connects to rates of pay of a body of workers or is apprehended and involves workers; I have no jurisdiction to make a recommendation. On the facts it would appear to be a change to the compensation envisaged when an existing shift worker moves to the day shift as detailed in the collective agreement made between the parties in 2014. That agreement provided that a worker could apply to be transferred to the day shift and receive compensation within a 6-month window. It did not provide for red circling that would mean the previous premium (for the day shift) would apply to existing workers for the day shift. As that is the case, to make a recommendation as argued by the worker’s representative would amend the collective agreement that in turn I apprehend could be connected to a body of workers and their rates of pay. In these circumstances I have no jurisdiction to hear this dispute as the facts could relate to other workers and rates of pay.

Jurisdiction