INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
TRANSPORT SALARIED STAFFS' ASSOCIATION
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr. Somers
1. Loss of earnings.
2. The dispute concerns the calculation of loss of earnings for 3 Ultrasonic Tester Supervisors under a recent productivity deal negotiated in the Company. The Union claims the formula used in the calculation of loss of earnings is being applied inconsistently across the Company and the result is that different groups are receiving different amounts. In the case of the 3 workers concerned two have been offered amounts of €5,000 and €2,500 and the third person nothing. The reason for these low amounts is the application of a 'mitigation' factor of 15%. The Union claims that as the mitigation factor was not used in the Infrastructure Division it should not be applied in the Chief Engineering Division where the 3 workers are employed.
The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached the dispute was referred to the Labour Court on the 18th September, 2003 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 12th December, 2003.
3.1 Both parties are agreed that the losses have occurred, however, the matter of how the compensation payment is to be calculated, is in question.
2. The principal of 'mitigation' has not been applied either prior to or since this claim, to the Infrastructure Division or the Operations Department.
3. There is some argument that mitigation would be appropriate in situations where losses arose subsequent to the implementation of a major productivity deal, such a possibility was never explored with the Union.
4. The Union agreed formula, has been applied in several other grades including supervisor in the Infrastructure Division without mitigation, throughout recent productivity deals. It is unacceptable that the Company chose now to break ranks with the Union's agreements and established practice, introducing inconsistency and unfairness.
4.1The Company should not have to pay the loss of earnings on the first 15% of any reduction in total hours worked as it has already been paid for in the productivity deal.
2. The principle of 'mitigating circumstances' has already been accepted by one trade union in a very similar claim. The Company would like to have this principle recognised for claims of this nature to avoid having to renegotiate the principal in response to other claims.
3. Concession of this claim would result in significant financial exposure for the Company and would require that they pay twice for the same productivity increases.
The claim before the Court is on behalf of three Ultrasonic Testers Supervisors who sought application of the agreed formula for loss of overtime earnings following the implementation of a 'new deal', which had been agreed in February 2002. The deal provided for increases in pay in return for increases in productivity. For the three claimants involved the Company took the stance that as there was no increase in output sought, the only productivity that could be gained was in terms of a reduction in input resources and accordingly, applied a mitigation factor to the formula for loss of earnings. It is this mitigation factor, which the Union contest, on the basis that it was not agreed and did not apply to other deals.
Having considered the details of both sides' arguments the Court is satisfied that in the absence of a specific reference to mitigation in the deal, to introduce one now is beyond the scope of the agreement and therefore in all the circumstances of this case, the Court recommends that compensation formula should not be offset by the mitigation factor.
Signed on behalf of the Labour Court
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.