INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
VITA BOND LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr McGee
Employer Member: Mr Grier
Worker Member: Mr Nash
1. Appeal against Rights Commissioners Recommendation IR19252/04/JC. (Double Appeal)
2. The claim is on behalf of 3 claimants, one of the claimants has been employed with the Company since 1972 and the other two claimants commenced employment in August, 2000 and February 2001. Their claim is for loss of earnings arising from loss of overtime as a result of structural change in transport arrangements in the Company in January, 2003. The Union claims that the three workers involved had between 8 - 15 hours overtime per week and since 2003 there has been a dramatic reduction in their overtime earnings. The Union rejected the Company's arguments that the overtime earnings associated with the year 2001 and 2002 were exceptional. They stated that there was an overtime pattern in place due solely to the haulage system in operation prior to January 2003 and that overtime was regular and was an integral part of their work pattern and that the claimants had a genuine expectation that the overtime in place prior to January 2003 would continue into the future.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 26th April, 2005, the Rights Commissioner issued her recommendation as follows:
- “On the basis of the evidence presented I find that the years 2001 and 2002 did involve exceptional levels of overtime.
I find that while the pattern of overtime may have changed there has not been a total loss of overtime earnings by any of the claimants. As overtime is not compulsory the variations in overtime earnings between one year and another and between one claimant and the other may relate to whether or not the employee is available for and works overtime. For example in the case of one of the claimants he was out on sick leave for considerable period of time in 2004.
In all the circumstances of this case I find that only one of the claimant’s had a regular pattern of overtime over a long number of years including the years prior to 2001 and I recommend that the claimant be paid a once off lump sum payment of €8,000 as compensation for loss of overtime earnings
I recommend against the claim in the case of the other two claimants.”
(The Claimants were named in the Rights Commissioners Recommendation)
On the 27th May, 2005, the Company appealed the Rights Commissioner's Recommendation to the Labour Court on behalf of the claimant awarded compensation in accordance with Section 13(9) of the Industrial Relations Act, 1969. On the 7th June, 2005, the Union also appealed the Rights Commissioners Recommendation on behalf of the other two claimants and accepted the recommendation for the first claimant. A Labour Court hearing took place on the 14th February, 2006.
3.1 The Rights Commissioner did not take full cognisance of the nature upon which the two claimants were employed by the Company. They were advised when offered employment, that overtime was an integral and essential part of the job and making themselves available for overtime was a requirement for the job.
2. Based upon the premise that the pattern of overtime would continue to be a feature of their employment for the foreseeable future, the claimants based their lifestyles, and made financial commitments upon this projected income. Their income was then reduced, following a decision by their employer, the three claimants all had to find alternative ways of accruing additional resources to meet the financial commitments they had made.
3. Their overtime pattern in the Stores was regular as can be witnessed by the earnings of the first claimant over a long number of years. The fact that the other two were employed in 2001 and 2000 respectfully, does not diminish the impact of the loss incurred albeit over a much shorter time frame.
4.1 The level of overtime in relation to the factory relocation relates to a one-off event that could not reasonably give rise to an expectation of continuing overtime. Similarly the level of overtime in 2002 arising from the absence of the production manager could not reasonably give rise to an expectation of continuing overtime.
2. Market forces in early 2003 resulted in the loss of 20% to 25% of the Company's business. Overtime levels dropped directly due to the loss of this business. Cutbacks in overtime working have helped avoid any redundancies and the level of earnings 2003/2004 remained on par with the level of earnings prior to 2001.
3. The necessary and normal ongoing improvements in efficiency to endure survival and maximise the Company's chances of securing new business have had some impact on overtime levels. There has not been any structural change, rather improvements in supervision etc. A reduction in overtime is part of "normal ongoing change" in accordance with Section 1.8 of "Sustaining Progress" and does not attract any additional compensation.
The Court, having considered the submissions of both parties, agrees with the Recommendation of the Rights Commissioner and upholds it, dismissing both appeals.
The Court notes the specific overtime clauses in the Agreement, which both sides should have complete regard to, or have it varied by agreement.
Signed on behalf of the Labour Court
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.