INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
TECHNICAL, ENGINEERING AND ELECTRICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Shift workers' deductions, annual leave in 2003 & floating days
2. The Company is part of a multi national Company with it's headquarters in America and it operates out of Ringaskiddy, Co. Cork. In 2003, the Company shut down its operations for five months following a dispute over the implementation of changes in working arrangements. A new Company/Union agreement was discussed and signed into practice in July, 2003. The dispute before the Court concerns a claim made by the Union on behalf of it's members in relation to three issues, two of which deal directly with the Company/Union agreement, 2003 and the Union is seeking for the agreement to be applied as it is written. The Union's position on (a) Shift workers deductions is that this is not covered by the Company/Union agreement and is therefore illegal. (b) The calculation of annual leave entitlement for shift workers in the year 2003 is not in line with the Company/Union agreement. (c) The practice of having to take full shift when the requirement is for a single twelve hour period is unworkable and needs to be changed. The Company rejects the claim.
- 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 7th July, 2004, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 17th November, 2004, the earliest date suitable to the parties.
3. 1. Any deductions made for time absent should be at basic time and the company should repay to those individuals who have already had the deduction of three hours at time and a half applied, the value of that excess as this deduction is not covered by the Company Union agreement, 2003. The Company wrote the agreement and advised the Unions that the agreement was the written word. The Union is now saying that the agreement should be applied as it is written.
2. The Company should apply the Company/Union agreement to the shift workers in the calculation of annual leave for 2003. The value to shift workers who worked eight months on shift is an extra 3.3 days.
3. The method of applying floating days has already been acknowledged as unsatisfactory. The Union is requesting that shift workers should have the option for 4 x 12 hour shifts in single slots to be taken without the restriction of they being applied to day shifts Monday to Friday inclusive.
4. 1. The Company/Union agreement states that the standard working week for shiftworkers is 39 hours, that an average working week of 42 hours is an integral part of the four hour shift and that the additional hours, i.e the three hours over 39, are paid at time and a half. Any hours not worked on the four-shift rota must logically be the last hours. If an employee has three hours absence in a week these must be the additional hours from 39 to 42 since they are an integral part of the rota, therefore, in the case of nonpayment for hours not worked the additional hours must be first. The Company/Union agreement is unambiguous in respect of 4-shift pay arrangements.
2. The calculation of annual leave entitlement for 2003 was carried out in full accordance with the Organisation of Working Time Act, 1997. The Unions' claim for additional unearned leave for shiftworkers is totally unjustified and any concession of this claim would have serious cost implications.
3. Shiftworkers have a considerable amount of free time. They work four shifts followed by four days off. They know their scheduled shifts a year in advance which allows them the opportunity to plan their time off. Should they require a night shift off and do not wish to take four shifts leave, they have the option of swopping shifts with a colleague. The arrangements for the taking of annual leave by shiftworkers is fundamental to ensuring continuity of plant operations while providing considerable flexibility for employees. These are agreed arrangements which exceed legislative requirements.
Having considered the views of the parties expressed in their oral and written submissions, the Court recommends as follows on the three issues before the Court:-
Pay Deduction in Respect of Shiftworkers Who are Absent
The Company indicated to the Court that in the event of unpaid absence in any week the first three hours are deducted at overtime hours i.e. at time and a half. The Unions argue that by operating this method the employee is deducted 13½ hours pay for a 12-hour absence. They maintain that the overtime hours should be the last hours to be deducted in any week.
Having examined in detail the deductions/payments made to absent shiftworkers, the Court concludes that deductions made for absences must take account of the 42 hour composite payment arrangement in place for working a 36 hour/48 hour fortnightly cycle, therefore, the appropriate hourly deduction rate should be 1/42 of the weekly rate of pay. The Court so recommends.
Calculation of Annual Leave Entitlement for Shiftworkers in 2003
As only seven months of the year were worked in 2003, the method of calculating annual leave has been in contention between the parties. The Company's policy is to allow 5 extra days over the statutory entitlement for 4 shiftworkers and the Company/Union agreement states that for those employees who work for 3 months but less than the full year, annual leave will accrue at the rate of two and one-twelfth for each complete month worked on the 4 shift system.
The Unions were concerned that the Company had treated the shiftworkers the same as the dayworkers for the calculation of annual leave entitlements in 2003. The Unions sought seven twelfths of the 5 extra days in addition to their statutory entitlement.
Having examined the calculation, the Court is satisfied that both the statutory entitlement and the extra days leave have been applied correctly, as the Company have granted:-
- 2.08 days leave for each of the seven months worked in 2003 (and, in the case where the employee worked at least 1365 hours in the year, the statutory entitlement of 20 days leave has been applied).
The Company/Union agreement does not allow for seven twelfths of the 5 extra days as claimed by the Unions, it specifies a "rate of two and one-twelfth for each complete month worked on the 4 shift system". Therefore, as the Court is satisfied that the calculation of annual leave entitlement for shiftworkers in 2003 was correct, the Court does not recommend if favour of the Unions' claim.
Taking of Annual Leave for Shiftworkers
A difficulty has arisen for shiftworkers who require one night shift off during the week or one shift off at weekends, as, on such occasions the Company requires them to take a week of shifts off. The Company's rationale relates to the serious problem it has encountered in covering those single shifts. Whereas, the Unions hold the view that the Company's position is draconian and does not take account of family commitments.
The Court recommends that the parties should engage in discussions to facilitate a greater number of single shifts off, bearing in mind the necessity for uninterrupted production, ensuring that all shift are covered and that adequate notice is given.
The Court is further of the view there is a substantial onus on employees to facilitate mutual time off on single shifts by the common practice of swapping such shifts.
Signed on behalf of the Labour Court
25th November, 2004______________________
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.