INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Appeal against Rights Commissioners recommendation No. Ir7881/02/MR.
2. The appeal concerns a worker who commenced employment as a day maintenance fitter in 1979. The worker was absent through illness for a significant period during 2001. The Company deducted 36.8 hours holiday pay from his total holiday entitlement . This total normally comprised 144 hours, 4 working weeks under the Organisation of Working Time Act, 1997 plus 62.5 hours negotiated under local agreements. The Company only allowed the worker 41% of the latter on the basis that the worker only attended for 41% of his rostered hours. The Union claimed that the worker was unfairly treated. The dispute was referred to a Rights Commissioner for investigation. On the 31st July, 2002 the Rights Commissioner issued his recommendation as follows:
"In the circumstances, I recommend that the worker should accept that he has received his full leave entitlement from the company, both statutory and contractual. In return, the company should offer to pay to the worker a once off lump sum of €200 as a gesture of goodwill and that the worker should accept this payment in full and final settlement of all matters in dispute between the parties."
( The worker was named in the Rights Commissioners recommendation).
On the 27 th August, 2002 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 21st November, 2002.
3. 1. The Company's action to unilaterally diminish the worker's terms and conditions of employment is unacceptable, inappropriate and contrary to collective agreements between the Company and Unions.
2. The Annual Leave document produced by the Company to justify its action is
not the negotiated nor agreed position with the Unions on site.
3. There is no legislation covering the terms and conditions being reduced by the Company without consultation or agreement. The worker is entitled to the 62.5 hours and not the reduced hours paid by the Company.
4. 1. The contractual annual leave entitlement is a company benefit.
2. Since 1998 the contractual annual leave entitlement for day workers of 62.5 hours has been awarded on the basis of hours actually worked/pro rata. This matter was raised as an issue by the Unions at a Company Union meeting. The Company gave an explanation that, where an individual failed to reach the minimum hourly requirements under the Organisation of Working Time Act, 1997, there is a provision to pro rata the annual leave entitlement. The Company was also applying a pro rata entitlement to the contractual elements for part fulfilment of the contract. The Company undertook to produce an explanatory memo and this was forwarded to Union Shop Stewards The practice was implemented and has applied to various workers who have been absent on sick leave and the Unions did not raise the issue. The Company, therefore, regards it as custom and practice since 1998.
The Court has considered the submissions of both parties in this appeal of the Rights Commissioner's recommendation . The Court notes that historically extra leave was introduced at various times for different purposes and that the original intention of such leave no longer applies and it now forms part of the overall annual leave entitlement. The Court accepts the point made by the Union that the manner in which the leave was altered in 1998 was not negotiated in the normal way and was not in accordance with best practice.
However, the extra leave is now a composite arrangement and is applied in accordance with the provisions of the Organisation of Working Time Act, 1997 which means that on certain occasions when one is out for a lengthy period in the year, the extra leave is given on a pro rata basis. The Court is of the view that this is not an unreasonable method of applying such leave and for that reason the Court upholds the recommendation of the Rights Commissioner. Therefore, the appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
27th November, 2002______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.