LCR23024

PARTIES:

DIVISION:

SUBJECT:

Compensation for loss of Shift Pay and RDAs - Application of the Cushioning policy

BACKGROUND:

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 23rd January 2024 in accordance with Section 26(1) of the Industrial Relations Act, 1990.

 A Labour Court hearing took place on 10th July 2024.

UNION'S ARGUMENTS:

1. The Union says that its members lost their shift premiums following the closure of the Information Desk. It says that there is a collective agreement in place that provides a cushioning mechanism to compensate employees for loss of shift allowances through a series of cushioning payments.  It is seeking the backdated application of this cushioning mechanism for its three members.

EMPLOYER'S ARGUMENTS:

 1. The Company says that the application of cushioning payments for lost premiums was not raised by SIPTU during engagement with the Union on new contracts for the three individuals.  The Company says that the employees signed the new contracts without reference to cushion payments.  The Company rejects that those cushion payments are now payable.

RECOMMENDATION:

This matter comes before the Court as a trade dispute arising from the closure of the information desk in the airport, which ultimately resulted in three workers ceasing to work shifts and a number of others availing of redundancy or severance.

The claim before the Court, which was initiated in February 2023, is for the application to the workers of a ‘Cushioning Policy’ which appears to have been in place in some form since the early 1980’s and clarified between the trade union and the employer in 2003. The application of that ‘Cushioning Policy’ is sought for three workers upon their taking up of non-shift roles between January and June 2021.

The ’Cushioning Policy’ was, on its terms, designed to help compensate a staff member for any initial loss of earnings when moving from a shift to a non-shift position. The ‘Cushioning Policy’ is applicable to permanent staff transferring to non-shift areas who have been on shift for a period of five years or more, but its application in any case is subject to the discretion of the local line manager.

The policy provides for a ‘cushioning’ sum equal to a cumulative total of 1.5 times the annual value of shift premium to be paid over a period of three years. The policy was updated in some manner in 2009.

In or about the middle of 2020 the information desk ceased to operate, and the workers were placed on lay off. There followed, in the period between late 2020 and mid-2021, a series of advertisements for vacant positions which the workers applied for, and as a result of which, by mid-2021, all three had secured non-shift roles and an end to their lay-off.

The Court is satisfied that both parties pursued engagements across this period of crisis for the employment in good faith without either party being aware of the existence or details of the ‘Cushioning Policy’. The policy explicitly provides for an obligation to ensure that all shift staff who might wish to apply for non-shift positions would be aware of the policy. The three claimants were not made aware of the policy at the time they applied for non-shift positions, and the reason for that situation is clearly the fact of the management and trade union’s lack of awareness of the existence of the policy at the time.

The three workers secured a non-shift alternative to redundancy or severance and an end to their continuing lay-off as a result of their success in competitions for appointment to non-shift roles.

In the case of the three claimants, application to them of the ‘Cushioning Policy’ at the time would have resulted in a payment of €25,477.91 to one worker, €25,076.40 to a second worker ad €14,367.81 to the third worker.

The Court clarified at its hearing that the roles previously occupied by the claimants, which were shift roles, no longer exist as roles in the organisation, and that no shift positions became available during the period of lay-off of the workers. There was no clarity as to what would have occurred if the workers had not applied for non-shift positions as they did, and so it can be assumed that they would have remained on lay-off, or some conclusion to the period of lay-off other than re-deployment to a shift position would have been reached.

The cessation of the shift roles of the three claimants occurred in the middle of an unprecedented crisis in the employment which appears to have resulted in a re-configuration of many aspects of the organisation. It is not clear to the Court that the ‘Cushioning Policy’ was intended to have application to the nature of the situation which befell the workers or the employer in 2020 and 2021. It seems reasonable however to assume that the parties, through the continuing acceptance of the existence of the ‘Cushioning Policy’, are committed to addressing the issue which arises for workers when they transfer from shift roles to non-shift roles.

The Court accepts that the description of what happened in this matter as “transferring to a non-shift area” may not be entirely within the meaning of the ‘Cushioning Policy’ as originally concluded. However, the events certainly amounted to a situation, enforced by circumstance, where the three claimants “wished to apply for non-shift positions”.

In all of the circumstances, taking particular account of the difficulty experienced by the parties at the time, and the failure to address the matter of the ‘Cushioning Policy’ at the time, the Court recommends that the trade dispute should be resolved by the employer making a gesture of good will in the interest of good industrial relations to each of the three claimants. That gesture should involve the payment of €7,000 each to the two workers with a greater loss of shift income and €5,000 to the third claimant.

The Court so recommends.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
8 August 2024	Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Ceola Cronin, Court Secretary.