INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR499/2/98MR.
2. The appeal is on behalf of 2 forklift drivers whom the Union claims, having been transferred from a 6-day roster to a 7-day roster in 1992, have lost out on overtime payment rates and in respect of holiday arrangements. The Union cites other individuals who received compensation on their change from day working to shift working in support if its case. The Company rejected the claim on the grounds that the new roster has a higher shift premium and thus there is an in-built compensation for Sunday work. The Company added that the colleagues who received compensation previously had incurred a reduction in shift premium arising from changes to their work-patterns. The matter was the subject of investigation by a Rights Commissioner who found and recommended on the 23rd of October, 1998, as follows:
- "Based on the evidence before me, I am satisfied that the issues raised by the Union are more appropriately dealt with in the context of shift premium rates and do not give rise to legitimate claims for compensation.
In the circumstances, I see no reason why the Company should accede to the claim.
I therefore recommend that the claim fails."
The Union appealed the Rights Commissioner's Recommendation, to the Court, on the 27th of November, 1998, in accordance with Section 13(9) of the Industrial Relations Acts, 1999. The Court heard the appeal, in Cork, on the 25th of November, 1999, the earliest date convenient to both parties.
3. 1. In January 1989, both operators were asked to go on shift for a trial period of 3 months. This was designed to give six day cover thereby bringing Saturday working into the equation. The premium applied to 2-shift working was time and 1/6th basic pay. Even though the 2-shift rota was supposed to last for a trial period of 3 months it actually went on for a 12-month period. However, instead of reverting back to daily working at the end of the trial period, the Company, in 1992, introduced a 7-day shift rota which carried a 20% premium payment. The individuals concerned were not given an option with regard to day-working or shift-working. Saturdays and Sundays were now considered to be part of the normal working week. The individuals concerned were required to work 12-hour shifts.
2. This system of working has caused some hardship for the two named employees. The fact that weekend working was not the expected norm meant that holidays would have to be taken if either a Saturday or Sunday was required off. Therefore, to take one of these days as a day's holiday would have cost the individuals 12 hours or 1.5 days due to the 12-hour shift. The holiday entitlement remained at 20 days with nothing added to account for shift-working.
3. The Company has paid lump-sums to individuals for moving from day-working to shift-working, in 1993. Approximately 20 employees were paid £4,000 per person for moving to a shift arrangement and for the loss of Sunday overtime and the bringing of Saturday into the shift pattern.
4. These two claimants have not been treated fairly. Given that other employees have been paid lump sums for transferring from day-working to shift-working, there is no reason why the exact same payment should not be made available to the two claimants in the interests of equal treatment for all employees.
4. 1. The claimants were transferred to an existing work roster with an agreed premium. The higher premium of 20% takes into account the fact that the roster requires working on one Sunday in four, and is, therefore, in-built compensation for Sunday work. A claim for additional compensation is unjustified.
2. The operators suffered no loss of earnings and, therefore, have no case for compensation.
3. The Company policy and practice is not to pay compensation in such circumstance. To do otherwise would be illogical and contrary to good business and industrial relations practice. More seriously, it would set a precedent which would involve the Company in paying compensation to every employee who had a change of position or work pattern, even if such change did not result in any loss of pay.
4. The case cited by the Union regarding 2 colleagues who received a lump sum is not relevant. They received the lump sum due to a change in their circumstances, whereby their premium was reduced from 25% to 20%.
The Court can see no basis on which it should interfere with the Recommendation of the Rights Commissioner.
The appeal is disallowed and the Rights Commissioner's Recommendation is affirmed.
The Court so decides.
Signed on behalf of the Labour Court
7th December, 1999.______________________
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.