INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
AGENCY FOR PERSONAL SERVICES OVERSEAS (A.P.S.O.)
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation IR52/98CW.
2. The Rights Commissioner's recommendation IR52/98CW is being appealed by both the Union and the Agency.
The appeal concerns overtime payments for employee (A) employed on a hybrid AO/AP scale and employee (B) employed as an Executive Officer. The Union claims that there are three elements involved, as follows:-
(1) From 1991 to 1995 the Agency paid the wrong amounts of money in respect of overtime paid to the two employees, due to the application of the wrong multiplier.
(2) In 1995 the Agency reduced the number of hours of overtime for both employees.
(3) This part of the claim relates to employee (A) only. The Union claims that this employee was informed that he was not entitled to any further overtime
payment from 1995 because of his grade within the organisation.
The employer argues that in respect of (1) above employee (A) was not entitled to be paid overtime in accordance with Civil Service Circulars 7/87 and 20/91. He is entitled to time off in lieu. The Agency accepts that employee (B) is entitled to receive overtime payments at the applicable rate which is set down in Civil Service Circulars in accordance with her grade. With regard to the Union's claim at (2), the Agency states that the issue of loss of overtime arising from restructuring was necessary. It made an offer of one year's loss of earnings as compensation for the reduced overtime but this was rejected. With regard to point (3) of the Union's claim, the employee concerned was not entitled to be paid overtime because of his grade within the agency.
The dispute was referred to a Rights Commissioner for investigation. A Rights Commissioner's hearing took place on the 29th of April, 1998 and the 18th of June, 1998. The following is the Rights Commissioner's findings in reverse order :-
(d) I do not accept that employee (A) was unfairly removed (or dismissed) from his position as Head of Evaluation. As was pointed out he has suffered no loss of status, salary, no conditions. I do not accept either that he has suffered a considerable lessening of potential earnings (see under (c) later). I consider that decisions made by the Board or the Chief Executive Officer are appropriate management matters which are not open to challenge unless manifestly unfair or oppressor.
(c) I accept the Agency position that employee (A) is not entitled
to overtime payments. If he were to come to an individual
arrangement with the Agency on a task or project related basis
then that is a private arrangement outside of his 'ex officio'
entitlement. Unless otherwise specified I consider that employee
(A) is covered by the time-off in lieu arrangements prevalent elsewhere.
However, as he had been in receipt of some overtime payments
since 1992 (and earlier) I consider that he does have some
entitlement on their cessation.
(b) The Union has claimed five times the annual loss in respect of
reduced overtime hours since 1995. I consider that some
compensation is merited in these cases. I do not believe that it
is helpful to produce a formula for the calculation of loss. I believe
that a figure of £3,000 for employee (A) and £1,200 for employee (B) are appropriate as compensation. Ms. Wilkinson raised the issue that this element of the dispute was more properly a matter for a complaint under the Payment of Wages Act, 1991. Whether it is so, or not, it is now an integral part of this dispute. It seems to me that any claim for unpaid overtime in the years 1995 to 1998 must be considered subsumed in this overall recommendation.
(a) It became apparent during the hearings that both employee (A)
and employee (B) were paid incorrectly in respect of overtime
during the year 1991 and 1995. Even if employee (A) ought not
to have received any overtime payments I believe that he is
entitled to be paid at the correct rate if a payment was made.
Accordingly I recommend that employee (A) and employee (B)
receive payments of £2,000 and £1,500 respectively on this issue."
The Rights Commissioner recommended that his findings be accepted by both parties.
(The two workers were named in the Rights Commissioner's recommendation).
"I recommend that the Union and A.P.S.O. accept the findings which
I have itemised above in full and final settlement of these issues."
3. 1. The overtime worked by the two employees from 1991 to 1995 was calculated incorrectly. The Agency should compensate the workers accordingly.
2. The Union is seeking five times the annual loss in respect of reduced overtime working for the employees concerned.
3. The compensation recommended by the Rights Commissioner is inadequate and should be increased substantially.
4. Training officers in the Agency are not allowed to take time in lieu for overtime worked because they would be absent for a substantial number of working days.
5. One of the employees concerned has worked overtime for twenty-four years. Up to 1995, he was paid for this overtime. For the past three years the Agency has refused to pay him for overtime worked.
4. 1. The worker concerned is not entitled to be paid overtime by reason of his grade within the Agency.
2. Under Civil Service regulations only staff up to the grade of Higher Executive Officer are entitled to be paid overtime.
3. The Agency offered compensation of one year's loss of earnings but this was rejected by the Union.
4. The terms and conditions of employment for worker (A) has not been reduced by reason of compliance with Civil Service circulars.
5. The Agency is prepared to accept the compensation as recommend by the Rights Commissioner.
Having evaluated the submissions of the parties the Court determines as follows:-
Overtime entitlements of Mr. O'Dwyer
Having regard to the period of time over which Mr. O'Dwyer was paid in respect of overtime worked, the Court considers it unfair to now apply the strict terms of the Civil Service Circular in his case. On this account, Mr. O'Dwyer should continue to receive overtime on a personal to holder basis.
Claim for payments arising form miscalculation of overtime rates
The Court considers that the actual amount of underpayment between the time at which the overtime premia were altered in error and the time at which the mistake was corrected, should now be paid to each claimant.
Compensation for loss of earnings arising form reduced overtime hours
The Court considers that the Rights Commissioner's recommendation in relation to this claim is reasonable and should be implemented.
It is the decision of the Court that the Rights Commissioner's recommendation be varied accordingly.
Signed on behalf of the Labour Court
2nd December, 1998______________________
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.