SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
CADBURY IRELAND LTD
(REPRESENTED BY EOIN FOSTER)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal against a Rights Commissioners Decision No. Wt41046/06.
2. This case concerns an appeal by the Union of Rights Commissioner's Decision WT41046/06/MR. The issue in dispute concerns the appropriate premium payable to operatives who work on Sunday at the Cadbury Ireland plant in Rathmore, Co. Kerry. The Organisation of Working Time Act, 1997, Section 14, provides that a worker be compensated "in an amount that is reasonable having regard to all the circumstances".
The Union's position is that the workers in this case are not appropriately compensated in relation to named comparators.
The Company's position is that the workers employed by the Company are actually paid at the appropriate level and in excess of the named comparators.
The dispute was referred to a Rights Commissioner and his Findings and Decision is as follows:-
Section 14 of the Organisation of Working Time Act,1997, in effect states that an employee must receive additional compensation "of an amount that is reasonable having regard to all the circumstances" for being required to work on a Sunday.
Based on the evidence before me, I have concluded that the long standing arrangements for shift workers at Rathmore are covered by a collective agreement and are based on the principle that such employees are compensated at a higher level for working on any other day of the week. I have also concluded that this additional compensation "is reasonable having regard to all the circumstances.
I therefore have no option but to find that the Union's claim fails.
"In accordance with Section 27(3) of the Act, I hereby declare that this complaint was not well founded".
On 13th July, 2006, the Union appealed the Rights Commissioner's decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 3rd April, 2007, the earliest date suitable to the parties.
3.1.The workers are in receipt of less favourable terms and conditions than named comarators in relation to the application of pay rates for Sunday work. This is unacceptable and cannot continue.
2.Workers employed at the comparator company receive double time for Sunday work whereas the allowance payable(14% on to shift pay)to the workers in this case is of a much lower monetary value.
4. 1. The workers are generously compensated for the requirement to work on Sundays. They are also in receipt of other benefits such as plus payments and service pay which is not payable in the comparator company.
When all these factors are taken into account the workers receive much higher earnings than their comparators.
2. The Company are in total compliance with the provisions of the Organisation of Working Time Act, 1997, in particular with Section 14 which deals with compensation for working on Sundays. The fact that the workers' receive an additional 14% on their shift pay to take account of this requirement complies with the Act and therefore the Union's claim is invalid.
This case was taken by the Union in reliance on the Organisation of Working Time Act, 1997. In relevant part the subsection (1) of Section 14 provides as follows:-
"Where an employee is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be paid compensation by his or her employer for being required so to work by the following means, - namely.........."
On a plain construction of the language used, the operation of the Section is confined to situations where an employee's obligation to work on Sunday is not reflected in the determination of his or her pay. On the facts agreed between the parties it is clear that the Claimants receive an additional 14% on their shift pay in consideration of their liability to work on Sundays under the terms of a collective agreement to which they are party. Hence, the fact of their having to work on Sunday has been taken into account in the determination of their pay.
In these circumstances the Court is satisfied that the Union's claim is not well founded. Accordingly, the Court concurs with the decision of the Rights Commissioner and the appeal is disallowed.
Signed on behalf of the Labour Court
3rd May 2007______________________
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.