SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Decision WT 73338/02/MR.
2. The Union and the Company appealed the Rights Commissioner's Decision. The Union's appeal is on behalf of three Laboratory Assistant.
The Union is asking the Court to consider its view that the code of Practice and the spirit of the Organisation of Working Time Act clearly recommends that (a) a person should have one day in seven or two days off in fourteen or fourteen days be the maximum number of days to be worked consecutively (b) a person should have a minimum of eleven hours break during shift changeovers.
The Society states that the Rights Commissioner's Decision concerns the compliance of the rota for NIR0 11 Laboratory personnel with the Organisation of Working Time Act, 1997. The Rights Commissioner found that the rota was fully in compliance with the Act, with the exception of a six hour changeover between shifts. The NIR0 11 Laboratory Rota forms part of a Collective Agreement between the Society and SIPTU.
The issue of whether the Society was in breach of the Organisation of Working Time Act, 1997, was referred to a Rights Commissioner on the 6th of March, 2002. The following is the Rights Commissioner's Decision:-
"In accordance with Section 27(3) of the Act, I hereby declare that this complaint was well founded and I now require the Society to amend the rota proposed for the three affected employees so as to ensure a minimum rest of eight hours between any two consecutive shifts"
A Labour Court hearing took place on the 4th of September, 2002, in Cork.
3. 1 It is not in the Society's interest to have people working 19 or more consecutive days or someone working possibly ten or eleven consecutive days eg. nine hour shifts and then starting another similar pattern after only a six hour break.
2. The Union contends that the proposed roster is unsafe and represents a disaster waiting to happen.
3. The Society's insistence on self cover diminishes the plus side of the overall agreement.
4. Student cover has always been a feature of holiday cover in the Laboratories in Dairygold. This cover would not be of any significant cost to the Society as the students are not on the same pay scale as the employees in the Company.
4. 1. The Society and S.I.P.T.U. reached agreement on the implementation of the Organisation of Working Time Act, 1997, under the Collective Agreement of January 31st, 2002. The agreement is based on work rosters, rest periods and productivity for the Powder and Services Area of Dairygold-Mallow, including the NIRO 11 Laboratory.
2. The Society believes that the NIRO 11 Laboratory Rota is fully in compliance with the legislation, including the six hour changeover between shifts. This contention that the rota is compliant is based on the application of a Derogation under Article 17.2 of the Directive, concerning the specific consideration of the operations at Mallow, as per the Collective Agreement of January 31st, 2002.
3. The agreement covers the Powder and Services Area of the Mallow plant and relates to approximately fifty employees. The Mallow facility processes milk into milk powder requiring a continuous production process, 24 hours x 7 day working operations. An integral part of the agreement is the provision of holiday cover within the roster groups.
4. In the NIRO 11 Laboratory, relief for holidays is provided internally within the group of three people. During the holiday cover period, two laboratory assistants must work for 18/19 consecutive days to provide relief cover for their colleague on annual leave.
The Court has considered this dispute in the context of Section 6(1) of the Organisation of Working Time Act, 1997. This section states that any collective agreement that exempts any activity from the application of Sections 11, 12, and 13 must include a provision specifying a rest period or break equivalent to those provided for in Sections 11, 12 and 13. Such a collective agreement has been negotiated and agreed by the authorised trade Union on behalf of the employees involved in this claim. The Court approved the agreement on 12th April, 2002, and registered it on 9th October, 2002, No.WTA/02/1. Both parties have confirmed to the Court that they continue to subscribe to the terms of the agreement.
In such circumstances, the Court has no power to consider whether there has been an infringement of the Act. Compensatory rest is derived from the terms of the agreement as per Section 6(1) and the Court has not been given evidence to show that the compensatory rest provisions are not within the terms of the agreement.
The case before the Rights Commissioner was not well founded. He had no jurisdiction to hear the claim. The Company's appeal is allowed. The Union's appeal is rejected. The terms of the collective agreement continue to be binding on the parties.
Signed on behalf of the Labour Court
24th October, 2002______________________
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.