INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
NATIONAL TOLL ROADS PLC
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Carberry
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Recommendation IR7646/02/FL.
2. The worker was employed by the Company as an operator on the toll bridge in June, 1997. He was employed as a permanent part-time worker and worked a late evening shift, from 10 p.m. until 1 a.m. The employer abolished the shift and the worker was offered alternative employment on day work. This new arrangement did not suit the worker and he referred the matter to the Union. Discussions took place locally and no agreement could be reached.
The matter was referred to a Rights Commission for investigation and recommendation. The Rights Commissioner's recommendation is as follows:-
"I recommend that the claimant agree to work the new hours, as proposed by the employer, and that the employer pay him €3,000 as compensation for loss of earnings, if he agrees to work them."
On the 15th of April, 2002, the Union appealed the Rights Commissioner's Recommendation to the Labour Court under Section 13(9) of the Industrial Relations Act, 1969. The Court investigated the complaint on the 27th of June, 2002.
3. 1. The main reason for bringing this case to the Labour Court is to insist that the Company adhere to the Rights Commissioner Recommendation Ref. IR / 7646 / 02 / FL in its entirety and not impose their interpretation of same.
2. The Company has accepted monies are due to the worker.
3. A move by the Company to tinker with Rights Commissioner Recommendation and to succeed will serve nothing else but allow this Company to undermine the recommendations of third parties and further isolate those who have worked with this Company for a long time.
4. The Rights Commissioner clearly identified and acknowledged the Company's lack of consultation in this matter.
4. 1. The Company/Union agreement lays down a clear mechanism for the compensation of individuals who suffer loss of earning as a result of changes in shift. The Rights Commissioner's Recommendation ignores the Company precedent, both in the level of compensation and the mechanism of payment.
2. The Company was prepared to live with the recommendation, based on the individual circumstances of the case, provided that the established Company precedent in relation to the mechanism of payment was upheld.
3. The Union sought the payment of compensation on an ongoing basis at the Rights Commissioner hearing in the red circling of the individual.
4. The Company had valid concerns in relation to the co-operation of the individual with the change in shift.
5. The Company have received a letter of resignation from the worker.
It is noted that the recommendation of the Rights Commissioner was not appealed by the Company, and was appealed by the Union as a means of resolving a dispute as to its interpretation.
It is not the function of the Court to interpret recommendation of Rights Commissioners. However, in this case the recommendation is clear in providing (1) that the claimant should agree to work the new hours and (2) that on so agreeing the Company should pay him €3,000 in compensation for loss of future earnings.
It is the decision of the Court that the recommendation of the Rights Commissioner be affirmed. For the avoidance of doubt, the Court makes this decision on the understanding that the payment is conditional on the claimant agreeing to work the new hours and actually working those hours. The Court notes that the claimant has now resigned from the employment and this has obvious implications in that regard.
The decision is also without prejudice to the established arrangements within the Company for dealing with shift changes.
Signed on behalf of the Labour Court
23rd July, 2002______________________
Enquiries concerning this Decision should be addressed to Helena McDermott, Court Secretary.