INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
GILBEYS IRELAND LIMITED
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr McGrath
Employer Member: Mr Brennan
Worker Member: Mr Rorke
1. Claim for loss of earnings.
2. The worker concerned commenced employment with the Company as a temporary canteen assistant in 1989.
In November, 1994 agreement was reached between the parties on the contracting out of the canteen services. Temporary staff were given the option of employment with the new contractors or re-deployment to the bottling hall of the Company's production area. The worker chose employment as a general operative in the production area.
The dispute before the Court concerns the Union's claim on behalf of the worker for compensation for loss of earnings. The Union argues that her re-deployment to the production area will significantly reduce her earning potential over the next few years and is seeking compensation at twice the annual loss.
The Company rejects the claim on the basis that the loss of income incurred by the worker relates to overtime earnings and that payment of compensation for loss of earnings has only been paid to permanent staff in the past.
The matter was referred to the Labour Relations Commission. A conciliation conference took place on 31st October, 1996. As no agreement was reached the dispute was referred to the Labour Court on 14th November, 1996 under Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 14th January, 1997.
3. 1. The Company indicated a commitment to address the issue but subsequently refused to utilise Company/Union procedures.
2. The inclusion of overtime in compensation payments for permanent employees has already been accepted by the Company. The worker concerned has significant temporary service and should not be treated less fairly.
3. The worker concerned was obliged to work overtime when permanent employees were unavailable to provide canteen services.
4. The contracting out of the canteen services has resulted in substantial savings to the Company.
5. The re-deployment of the worker will significantly reduce her earnings. She should be compensated for her loss.
4. 1. Compensation payments for loss of earnings has only been paid to permanent employees in the past, where long established practice has built up an expectation and dependence on a level of earnings as a result of regular rostered overtime.
2. Overtime is not guaranteed to permanent employees and the very nature of temporary employment precludes the build-up of any expectation of overtime.
3. The worker's temporary contract was terminated and a new temporary contract provided for the position of general operative. Comparison between the two contracts is no basis for a claim for loss of earnings.
4. The earnings of temporary employees are not guaranteed and it is not the practice to pay for loss of earnings. To set such a precedent would contradict the nature of temporary employment.
5. Concession of this claim would have far reaching consequences, not just for temporary employees but also for the permanent workforce.
The Court has fully considered all the views of the parties as expressed in their oral and written submissions.
Given the particular circumstances of this case and the length of time that the employee here concerned worked as a temporary employee and also noting that, in the circumstances relating to the contracting out of the Canteen, the Union consider this is a particular case without precedent, the Court recommends that the claimant be compensated for the loss of earnings in the amount of two times the annual loss.
Signed on behalf of the Labour Court
29th January, 1997______________________
Enquiries concerning this Recommendation should be addressed to Fran Brennan, Court Secretary.