LCR22428

FULL RECOMMENDATION

SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

LEE TOWAGE LIMITED
(REPRESENTED BY ANNE O'CONNELL SOLICITORS)

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

SUBJECT:

1. Unagreed Changes To Terms And Conditions Of Employment

BACKGROUND:

2. This dispute could not be resolved at local level and was the subject of Conciliation Conferences under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 30 March 2021 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 17 June 2021.


UNION ARGUMENTS:

3. 1. The Union Member’s contract of employment was changed without agreement.

2. The Union seeks the preferred redress of the Member returning to his original roster of two week Tour of Duty/ two week Period of leave.

3. Alternatively, the Union Member seeks an additional remuneration of €11.617.66 gross per year with the increase retrospectively paid for the period of 30 months to the value of €29044.16.

EMPLOYER ARGUMENTS:

4. 1. The Employer states that extensive consultation was held with the Union Member before the implementation of the change in shift pattern and is in line with his contract of employment.

2. The Employer contends the Union Member is on a higher package than other Deckhands and the shift pattern is more beneficial to the Union Member’s work / life balance.

3. The Employer states it is not in a position to pay the union member any further monies in respect of the shift change nor is it in a position to change the shift pattern back to the original shift pattern.

RECOMMENDATION :

The issue in dispute between the parties arises from a change in the Worker’s work pattern from two weeks on and two weeks off to one week on, one week on standby by and one week off. The Worker believes that this not in compliance with his contract. The Employer submitted that the change had to be put in place to service a new contract that they had been awarded

Union submission

It is the Union’s submission that Clause 3.4 of the Worker’s contract provides “At the end of each Tour of Duty, the employee will be entitled to a Leave Period, all of which is to be taken before the next Tout of Duty. Each Leave Period shall normally last of the same number of days as the Tour of Duty immediately preceding it.” A Tour of Duty is a period whereby the Worker is continuously on board the vessel 24/7.

From 1997 when he commenced work to August 2018 when the Employer introduced the new pattern the Worker’s pattern was two weeks on and two weeks off. The Worker has built his life around that pattern, The Worker believes that he is now working more hours for a lower rate of pay. It is his submission that the week he is on standby the hours are ‘captive hours’ as he is restricted as to what he can do as he needs to be available if he is called in to work.

The Worker co-operated with the changes under protest and his preference is to return to the old pattern, but he accepts that this may not be practical. The Union on behalf of the Worker had sought to engage with the Employer but it is not the practise of the Employer to engage with the Union in respect of collective issues.

The issue was processed through the Employer’s grievance procedure and through mediation, but no resolution could be found. It is the Union’s submission that under the new contract the Worker must be available within two hours-notice, on the standby week and therefore in reality must be available all the time.

Employer’s submission

The Employer entered into negotiations for a new towage contract. On the 22^nd June 2017 the Employer met with all of the staff of the Tug affected. It was explained to all the staff that in order to ensure the viability of the business within the port and to facilitate the new contract a new shift pattern would need to be implemented. It is the Employer’s submission that the new shift pattern confirms with clause 3.4 of the Worker’s contract in that he still gets a period of leave in between his tours of duty equivalent to the tour of duty he has just completed.

As part of ensuring the viability of the business at that time the Employer also offered voluntary redundancies. It is the Employer’s submission that further engagements took place with the Worker’s over a period of fourteen months and the new shift pattern came into effect from 30^th August 2018. It is the Employers submission that they increased his hourly rate and his subsistence payment and that in fact he actually works less hours.

The Employer drew the Courts attention to a table that showed the Worker’s hours and earning under the old rate and his hours and earnings under the new rate. It is the Employer’s submission that although the new shift pattern requires an on-call week that has a two- hour notice period, the reality is that the schedule of ships is generally known in advance so on most occasions the Worker will know at least a few days in advance if he is required. The Employer is not in a position to facilitate a return to the old shift pattern.

The Court acknowledges that a change to shift pattern after such a long period working the one shift pattern can impinge on how a Worker manages his time. However, the Court notes that the changes have been in operation since 2018 and that going back to the original shift pattern is not an option. The Worker it appears to the Court is seeking to be paid his hourly rate for hours that he does not work during his on-call week.

It is not disputed between parties that when he is called in he is paid his normal hourly rate. The Employer confirmed that factored into the hourly rate which they had increased was recognition of the requirement to be on standby one week in three. The Court noting the changes to the pay arrangement that the Employer has already made recommends that the Employer pay the Worker a once off lumpsum of €5,000 in full and final settlements of this claim.

The Court so recommends.

NOTE

Enquiries concerning this Recommendation should be addressed to Elaine McNeela, Court Secretary.