Worker

Employer

Anonymised Parties

A Maintenance Worker on the cusp of retirement

A Transport Company

Representatives

Diarmuid Long SIPTU

 No Appearance by or on behalf of the Employer

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00002047

13/12/2023

On 13 December 2023, the Union, SIPTU submitted a Trade Dispute for Investigation on behalf of the Worker on the cusp of his retirement.

The case involves an attempt to consolidate full payment for a loss of earnings benefit which arose from Strike Settlement in LCR 21438 in 2017.

On 15 December 2023, the Employer was notified of the claim and asked whether they objected to the Dispute being investigated by an Adjudication Officer?

On 12 January 2024, the Union was informed that the Respondent had not tabled an objection and was deemed to have consented to an investigation by an Adjudicator under Section 13 of the Industrial Relations Act, 1969.

Both Parties were invited to hearing set for 27 June 2024 at 10 am.

As both Parties were invited to present submissions and did not, On 26 June 2024, I tried to reach both Parties seeking their respective submissions on the case.

The Employer forwarded their written submission on a Preliminary Argument the day before the hearing and confirmed that they would not be attending the hearing as there was another hearing on the same date and time in Dublin.

The Employer contended that in the event the Adjudicator was not able to accept the company preliminary argument, “that a revised date is set aside for this hearing “

The Union forwarded their submission on that same day and had been under the impression the case was not progressing.

I asked the Union to respond to the Employers reason for no attendance. The Union expressed a desire to press on as in the event of a scheduling clash, it should have been raised before now.

The Hearing proceeded in the attendance of the Union and the Worker and in the absence of the Employer.

The Worker has worked for the Company through Apprenticeship to Mechanic from 1973 until his retirement on December 14, 2023.

The Union outlined that the background to the claim for loss of earning arose from an unresolved outstanding interpretation of the loss of earnings formula for Maintenance staff which arose from LCR 21438.

This Labour Court Recommendation followed three weeks of Industrial Action in early 2017 and was accepted by all parties.

The Union pointed to Page 16 of the Recommendation as the focal point of the Dispute.

“Loss of earnings, if and when they occur, will be assessed in 12 months. Loss of earnings will be based on average earnings over the period of three years and compensation of 12 months the loss will be paid. Payment will be made upon completion of the assessment subject only to the ability of the company to pay at that time. In the event of an inability to pay at that time, it I understood that payment will be made at the point where the company has the ability to pay “

The Worker explained that the background which prompted the compensatory payment, was a departure from double pay on Sundays to 33% to a 66% loss of Premia and 5/7 work pattern.

 In my seeking to understand the dispute, the Union clarified that the avenue for claiming the loss of earnings formula was initiated by the Worker. It was managed centrally by the Human Resource Dept and Engineering. There was no troubleshooting mechanism.

The Company had not pleaded   an inability to pay at any time.

On week 39 of 2018, the Worker received a loss of earning payment of €3021.80, gross.

On 26 November 2018, the Worker disputed these calculations, his stated loss of earnings amounted to €6, 244.49, gross. He went through his calculations at hearing.

The Union contend that the Employer applied an erroneous formula to the loss which varied from the wording of the Recommendation at large.  The Employer, through the head Engineer wrote an email dated April 2, 2019, which limited the loss of earnings to loss of Sundays alone.

As this issue affected other Garage staff, the Parties entered a Dispute.

The Union has been in active Conciliation with the Employer since that time. The most recent conciliation occurred during 2023 and comprises a cohort of 40 Union participants.

The matter remained unresolved on the day prior to the Workers retirement. The Union requested that the Worker be now dealt with on an individual basis due to his retirement from the Employer business.

The Union argued that:

1 The Company failed to follow the prescribed formula in LCR 21438 on loss of earnings calculation.

2 The Worker has an expectation of fair compensation. There is a discrepancy between the expected and actual pay out, which remained unresolved at retirement.

3 Page 15 of LCR 21438 states that individuals should have the opportunity to maximise their earnings.

4 LCR 21438 was the product of a comprehensive negotiation process intended to resolve persistent disputes over earnings and working conditions.  The loss of earnings framework is an agreed formula.

5 The Employer is mistaken in its interpretation and application of the formula for the Maintenance grade.

6 The Employer and the Union have been in Conciliation on this issue and the Worker comes to hearing today concerned that retirement will automatically distance him from being part of the eventual resolution in the matter. The Case comes to hearing with the support of the Union at collective Level and through the Workers’ Rights Centre.

7 The Union submitted the Dispute for Investigation on 13 December 2023, one day prior to the Workers retirement. The Worker was unaware of any precedent where benefits awarded at third parties automatically survived retirement.

He came to hearing to ask for the protection of not being left behind in the eventual resolution of the incomplete loss of earnings at Conciliation.

In the intervening period, the Union accepted that Labour Court has revisited an aspect of LCR 21438 on loss of earnings for loss of overtime for 100 Clerical Staff in LCR 22820 September 2023 and the Company were found “to be dragging their feet “in the Recommendation in favour of the Clerical Staff.

The Union confirmed that they believed this Recommendation had been implemented for those workers.

 The Union disputed the application of LCR 22904 where the Court refrained from making a Recommendation on being requested to interpret a Circular as a claim concerning a “body of workers “

The Union expressed a concern that retirement should not extinguish the workers’ rights to obtain a fair settlement from a strike settlement in which he had been a full participant.

The Worker also raised a claim regarding an under payment of sick leave amounting to €26.46 in respect of a self-certified sick day in September, prior to his retirement. The Labour Court in LCR 22727, March 2023 had re-instated sick pay from at gross September 1, 2020.

While I listened to this claim, I have explained to the Union that it was not incorporated on the WRC complaint form of 13 December 2023, and I was unable to confirm that the local disputes resolution mechanisms had been exhausted prior to referral.

The Employer has not attended the hearing but has submitted a Preliminary Point for consideration by the Adjudicator.

I was dissatisfied at the lack of respect shown to the WRC by an Employer which has clearly worked well with the States Industrial Relations Machinery.

Once parties are notified of a hearing by WRC, parties are equally notified of a very flexible postponement policy which allows parties attend to matter such as double bookings or representative unavailability.

On this occasion, the Employer chose to attend a WRC case in Dublin and decided not to attend in Cork.

Given that the subject matter of this case is a long running dispute surrounding an unresolved IR matter since 2018 and given that the matter concerns a legacy item of a Labour Court Rec, I would have expected the Employer to have actioned an application to postpone, at the very minimum.

This is a Unionised employment governed by Collective agreement. I find the actions of the Employer to be disrespectful and not carrying an equal share of the responsibility to resolve conflict which is residual from an employment relationship.

 I will now summarise the Preliminary Argument the Employer has shared with the WRC.

The Employer has contended that the claim advanced by the Worker should not proceed.

“It is identical to that of another claim which is currently being pursued by a collective group of employees and is referenced in the workers own submission.” A further reference to this collective claim is also contained in LCR 22820, Appendix 1.

The Employer referred to the workers claim as “the other claim “contained in the narrative of LCR 22820.

The Employer went on to argue “ the contagion “ effect that any Recommendation in ADJ 49249 would have and determined that is was in fact a claim  relating to a body of workers and pointed to the Labour Court Recommendation in LCR 22904 which declined to make a Recommendation for that very reason as the claim had national implications .

The Employer apologised for nonattendance due to being double booked and in the event that the preliminary argument was not accepted, the employer sought a revised date for this hearing.

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

This claim comes to me as having been submitted on the day prior to the workers retirement on 14 December 2023.

I have been requested to investigate the claim under Section 13 of the Industrial Relations Act, 1969. I have been asked for my opinion on the merits of the dispute.

Rights commissioners / now Adjudicators

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.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

Industrial Relations has at its very core voluntarism. In this case, the Employer did not object to the investigation. This should translate as employer being prepared to attend a hearing a submit a company position and argue the case in stereo.

However, the Employer has sought to place a large spanner in the wheel of a potential for conflict resolution, first by their absence from a WRC hearing keen to hear from both sides   and secondly in their contention that the WRC rules surrounding postponements do not apply to them.

While there is a welcome informality in IR hearings, it is not ok for either party to freelance within the WRC procedures. It would have been acceptable if the Employer had sent a deputy to explain the employer position. I am troubled by the avoidant position adopted.

I have explored the Employers contention that this claim concerns rates of pay of a body of workers. The Union contended that they were looking for the worker to access his full loss of earnings which arose from the 2017 Strike, and they feared retirement would eclipse that right. They said their claim was a unitary claim aimed at keeping the worker live in an unresolved dispute.

The Labour Court Recommendation 22904 concerned the terms of a pre-retirement initiative, and the Court was left in no doubt that the interpretation of national circulars is connected with the rates of pay of a body of workers.

I do not consider this an analogous claim to LCR 22904, the claim is that the worker wants to keep his claim lit for what he believes is an erroneous calculation of a strike settlement. He did not want his imminent retirement to prejudice his place among the remainder Maintenance staff.

He is seeking a red circling arrangement. This is not an interpretation of a National Circular.

I find that I am not curtailed by Section 13 (2).

I have told the Union that I cannot recommend on any leapfrog claim.

I have accepted the Union position that the incomplete loss of earnings claim is currently before the WRC Conciliation service.

I fully respect that process which stands separate to   Adjudication. It may have assisted the Parties to have flagged this issue with the Conciliator and sought an accommodation prior to December 13,2023 as this is a very important process.

However, what appears to be troubling the worker is that eventual benefits which may arise within the company on resolution, overtaken by retirement, may cease to be applied.

The Union explained the administrative process surrounding pay management post resignation and in retirement and were not familiar with any reciprocal arrangements which would capture a payment awarded in retirement.

The Employer relied on the “contagion “argument.

In    seeking to investigate this case, I am mindful of the IR Act 1990 amendment made in 2015 to allow a retired worker to access a resolution within temporal limits.

Time limit in relation to trade dispute where retired worker is party to dispute.

26A. (1) Notwithstanding any other provision of this or any other enactment, but subject to subsection (2), an adjudication officer or the Court shall not investigate a trade dispute to which a worker who has ceased to be employed by reason of his or her retirement is a party unless—

(a) the dispute was referred to the Commission for conciliation within a period of 6 months from the date on which the worker’s employment ceased, or the date on which the event to which the dispute relates occurred, whichever is the earlier, or

(b) the dispute was referred to an adjudication officer or, as the case may be, the Court within the period referred to in paragraph (a).

In this case the trade dispute was referred one day before the worker finished his employment. I find that the Worker did not become a retired worker until 15 December 2023 and at the moment of his claim had not ceased to be employed by reason of retirement.

A Strike is defined in Section 8 of the Industrial Relations Act, 1990 as:

“A cessation of work by any number or body of workers acting in combination or a concerted refusal or a refusal under a common understanding of any number of workers to continue to work for their employer done as a means of compelling their employer, or to aid other workers in compelling their employer, to accept or not to accept terms or conditions of or affecting employment.”

The Worker was a participant in the Strike of 2017. He has an issue on the quantum of the loss of earnings he has received, and this remained unresolved on 13 December 2023.

I have no comment on the merits of the claim that the calculation is erroneous. This is a matter for the Parties themselves at Conciliation. I have explained that I could not countenance a leapfrog claim.

In investigating this claim, I can appreciate that the worker does not want to be left behind in the event of an eventual resolution of the matter. I can see that he is encouraged by the Courts intervention on the Employers clerical workers.

A strike settlement such as LCR 21438 is a hugely significant document as it appears to have guaranteed the Company a future at a time when that was clearly in doubt.

The Worker was a participant in that strike and has served 50 years with this company. He accepted the terms of LCR 21438.

Of course, I would have preferred if this matter was addressed as the worker prepared for his retirement by both the Union and the Employer, but I am dealing with a different reality.

I have found merit in this Dispute.

I explained to the Union at hearing that I could not see the claim for loss of earnings on the calculation of sick leave on the 13 December 2023 complaint form.

I have not found merit in this aspect of the claim.

Dispute on the Calculation of loss of earnings following LCR 21438