LCR22837

1. Loss of Earnings.

BACKGROUND:

2. This matter 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 matter was referred to the Labour Court on 6 September 2021 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 9 October 2023.

UNION’S ARGUMENTS:

3. 1. The Union states their Members have been affected financially by the unilateral decision of the Employer to hire staff on new terms and conditions in order to reduce the hours and premia given to those Members.

2. The Union states the Employer should have negotiated a loss of earnings agreement with the Members and their union to offset losses from the proposed changes.

3. The Union request the Court recommend that the usual formula for resolving loss of earnings s applied in this instance.

EMPLOYER'S ARGUMENTS:

4. 1. The Employer state that as a result of the Employees looking for a better work life balance, more drivers were hired which resulted in less working hours and therefore less earnings for those Employees.

2. The Employer states that, in addition, there was a reduction in sales volumes and the win of a contract which resulted in reduced journey times due to the client location.

3. The Employer states that as a goodwill gesture they offered to make a payment in the form of a €500 tax-free voucher to the 2 drivers and increased this offer to €1000 but this was declined.

RECOMMENDATION:

Background to the Dispute

The within dispute relates to claim for compensation by two Workers for loss of earnings. The dispute was referred to the Court under section 26(1) of the Industrial Relations Act 1990.

Air Products Ireland Limited (‘the Company’) introduced new working arrangements for delivery drivers in 2020 whereby the Workers moved from a forty-hour basic contract to a forty-eight-hour contract, as a consequence of which the Workers submit they are in receipt of far less overtime work and have experienced a corresponding reduction in meal allowances.

The Parties disagree as to what prompted this change: the Company submits that the change was in response to the Workers’ complaint of excessive working hours under the old arrangements and the negative impact this had on their work-life balance; the Union submits that change was a deliberate scheme to restrict the Workers’ earnings as the Company proceeded to hire additional agency workers to cover a substantial number of the hours that the Workers would previously have worked.

In any event, the majority of the workforce have accepted the new working arrangements. Three employees requested to be red-circled on their historic terms and conditions, including the two Workers on whose behalf the within dispute has been referred. The third individual who sought red-circling has since left the Company’s employment. The Court understands that one of the two Workers who are the subject of this referral has recently moved to the new contractual arrangement also.

The Workers calculate their annual loss of earnings as €15,992.00 and €13,723.00 respectively. They are seeking compensation for their estimated loss in accordance with the standard loss of earnings formula.

Discussion and Recommendation

In the Court’s opinion, this dispute has been referred to it prematurely in circumstances where the new contractual arrangements have not been in place for a sufficient period of time to accurately assess the extent to which they negatively impact on the Workers’ actual earnings (as opposed to non-taxable meal allowances), if at all.

The Court recommends that the Parties should work the new contractual arrangements in good faith for a period of twelve (12) months from the date of the within Recommendation. At that point in time, the Parties should engage locally to evaluate whether or not the new arrangements have resulted in an actual loss of earnings to the Workers.

The Court will be available to assist the Parties thereafter should that be necessary.

The Court so recommends.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
12 October 2023	Deputy Chairman