INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Compensation for loss of earnings.
2. The Union's claim, on behalf of two clerical workers, is for the payment of compensation for the loss of structured overtime. As a result of re-organisation in June, 1998, the system of overtime rosters at the Ferryport was abolished and a system of shift work was introduced. Employees who were appointed to shift positions now work from 6.30 a.m. to 11.30 a.m. and from 5.30 p.m. to 10.30 p.m.. They receive a 30% shift premium. Employees who were not appointed to shift work received compensation for loss of earnings at the rate of 1.75 times the annual loss. The Company claims that the claimants did not receive compensation as they did not suffer a loss of earnings. One of the claimants, employee (a), earned approximately £3,600 per annum for working overtime while employee (b) earned approximately £4,800 per annum.
The claim was the subject of a conciliation conference on the 11th of December, 1998, under the auspices of the Labour Relations Commission. As agreement was not possible, the dispute was referred to the Labour Court on the 7th of January, 1999, in accordance with Section 26(1) of the Industrial Relations Act, 1990. The Court investigated the dispute on the 5th of March, 1999, the earliest date suitable to the parties.
3. 1. The Company's 1991 Agreement provides for the buyout of structured overtime where it is no longer required. It has applied in most departments throughout the Company without any pre-conditions or restrictions. Many of the staff who received compensation in the past went on to earn higher salaries in the following year.
2. The 30% shift premium is payment for the unsocial hours worked by the claimants. They must work on Saturdays, Sundays, bank holidays and cover all late arrivals/sailings, both morning and night. The premium should not, therefore, be taken into account when calculating loss of earnings.
3. It appears that the claimants have been discriminated against for no apparent reason. After they succeeded in obtaining the shift positions, the Company informed them that they would not receive the buyout payments due. This had not been referred to initially in the advertisement for the positions.
4. 1. The claimants were not compensated for loss of earnings as their earnings have increased. Employees were aware that no compensation would be paid to those who succeeded in obtaining the shift positions.
2. The Company has no problem in paying compensation where a loss of earnings has occurred. It has paid compensation where the payment of bus fares or the use of a company car have been withdrawn, or where overtime earnings over a period have been lost (including rostered overtime).
3. The Company has not paid compensation where:
- no loss of earnings has occurred;
- where loss of earnings arose due to loss of business;
- where overtime earnings have been fluctuating over a period.
The Company cannot pay for loss of earnings where no loss occurs.
The Court, having considered the submissions of the parties and, in particular, the oral responses made during the hearing, is satisfied that the policy of compensation, in operation in the company for many years, is based on the principle of loss of earnings from all sources.
The Court supports the view that compensation should only be paid where there is an actual loss of earnings.
However, the Court notes that in this case, the Company seemed unsure that the policy was understood where employees opted for a shift system, following the elimination of structured overtime, as there would be no resultant loss of earnings. Management advised the Court that they took steps to convey the policy to potential applicants for the new shift system. The Court is not satisfied that the information was conveyed as instructed and, therefore, some liability must accrue.
The Court recommends that in relation to the two claims before it for consideration, the matter is best resolved by the payment of a lump sum. Therefore, the Court recommends that employee (a) should be paid £1,500 and employee (b) should be paid £2,000. This should be accepted in full and final settlement of the claim and should not be quoted as a precedent in the future.
Signed on behalf of the Labour Court
31st March, 1999______________________
Enquiries concerning this Recommendation should be addressed to Dympna Greene, Court Secretary.