INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr O'Neill
1. Company's non-adherence to Employment Regulation Order (ERO).
2. The dispute relates to the interpretation of overtime provisions contained in the Contract Cleaning (excluding the City and County of Dublin) Joint Labour Committee's (JLC) Employment Regulation Order (ERO) first established in an Agreement of 1st of August, 2003. It specifically relates to how overtime should apply to workers employed on night shift at the Company. Prior to the JLC Agreement of 1st August, 2003, a worker would have to achieve in excess of 39 hours per week to qualify for overtime pay. The new Agreement provided that from 1st January, 2004, overtime would be paid for all hours worked over those for which the worker was contracted.
At present the workers concerned receive the JLC rate of €8.25 per hour and, because they work night shift, they also receive a 33% premium which results in them being paid a composite rate of €10.83 for all hours worked (except Sunday) including overtime. The workers believe that they should also be paid the composite rate for all overtime hours. However, the Company believes that because they are in receipt of a shift premium this excludes them from an entitlement to overtime payment. From the 1st of July, 2004, overtime is paid as follows:-
Time + ½ for first four hours worked and double time thereafter.
Saturday - time + ½ for first four hours worked and double time thereafter. Sunday - double time for all hours worked.
The dispute was referred to the Labour Relations Commission and a conciliation conference took place. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 2nd of February, 2005, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 26th of October, 2005, in Galway, the earliest date suitable to the parties.
3. 1. The workers are paid the shift premium because of the unsocial hours they work. This should not exclude them earning overtime hours as in the case for other employees in the Company.
2. The present situation means that contract cleaning operatives working day shift would have a higher overtime rate than those working night shift.
4. 1. The Union's claim is precluded under Section 1.5 of Sustaining Progress as it is clearly cost increasing.
2. The Company believes that it is fully compliant with the Employment Regulation Order (ERO). The workers concerned are paid above the JLC rate for all hours worked. Staff who are paid a shift premium rate are paid it for all hours and, thus, overtime rates do not apply.
3. Conceding the Union's claim would result in rates being paid which are unsustainable.
The Union submitted a claim to the Court seeking the Court's interpretation of the overtime provisions contained in the Contract Cleaning (excluding the City and County of Dublin) JLC's ERO.
Overtime provisions are contained in Part V of the ERO and state:-
"(i) Overtime rates shall be paid after 39 hours Monday to Friday or after contract hours if these are less.
(ii) [not applicable]
(iii) That with effect from 1st July, 2004, overtime rates be as set out hereunder:
a. Time and one half for the first four hours and double time thereafter.
b. Saturday overtime be at the rate of time and one half for the first four hours and double time thereafter.
c. Sunday overtime be paid at the rate of double time for all hours worked".
Having examined the matter, the Court interprets this provision to provide overtime premia as specified in Part V of the ERO to be applied on the JLC rate (€8.25 per hour from 2nd September, 2005) as a minimum. The Court recommends that the Company should ensure that overtime is applied as per this ruling and also recommends that retrospection from 1st January, 2005, should be paid where applicable.
Signed on behalf of the Labour Court
15th November, 2005______________________
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.