INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
BORD GAIS EIREANN
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Ms Tanham
1. Claim on behalf of two Foremen for payment in respect of requirement for excessive out of hours attendance at weekends.
2. Bord Gais is a commercial semi-state body established under the Gas Act, 1976. The Company operates in the energy industry and is headquartered in Cork with offices across the country. The Company employs in excess of 1,000 employees.
The two Foremen in question are based at the Company's premises in St. Margaret's Road, Finglas, Dublin 11, and Arena Road, Sandyford, Dublin 18.
The two Foremen are seeking payment for what they describe as"excessive out-of-hours overtime."
In 1991, the Company and the Foremen agreed through a process of collective bargaining to grade the position of 'foreman'as a Band 6 position. This is a non-overtime band which means that there is no payment for any hours worked in excess of the normal working week.
During negotiations it was understood by all parties involved that there would be a reasonable level of out-of-hours work involved in the position. It is the Company's position that all overtime worked should be agreed in advance with the relevant line Managers in advance in order to assess the necessity or otherwise of the requirement to attend. The Company is of the view that the base salary and the availability of'time in lieu'is fair and reasonable compensation.
The introduction of the Dublin City Planning Act which came into force in 2000 resulted in an increasing amount of work being scheduled at weekends and evenings. An agreement was reached in October 2001 which provided for payment to be made to the two Foremen to compensate them for the excessive out-of-hours attendance. This agreement ran until 2006 when a new agreement was put in place to compensate the two Foremen for their involvement in the Accelerated Renewals Programme. The last payment under this agreement was made in December 2009.
The dispute could not be resolved at local level and was the subject of three conciliation conferences under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 19th July 2011 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 10th November 2011.
3. 1. The Union maintains that the Company has claimed that it cannot pay the two Foremen for out-of-hours attendance as the category is a non-overtime grade this despite having previously entered into agreements on two earlier occasions when excessive out-of-hours attendance was required.
2. The Union contends that it is Management who arranges weekend work and not the individual Foreman.
4. 1. The Company maintains that it does not accept the two Foremen's contention that they are required to attend excessive out-of-hours work. The only works that Foremen are specifically required to attend are "Non-Routine Operations Procedures".
2. The Company maintains that the two Foremen have no contractual entitlement to receive overtime payments. The two Foremen receive a daily subsistence allowance and mileage at a specified rate.
3. The Company allows non-overtime employees'time in lieu'in respect of out-of-hours time worked.
The matter before the Court concerns the Union’s claim on behalf of two named Foremen based in the Service Delivery Construction Department for compensation for working excessive out-of-hours attendance. The Claimants are on salary Band 6 which is a non-overtime band. Prior to working in the Service Delivery Construction Department the Claimants were deployed to work on the Company’s Renewals Project in 2001 and on the Accelerated Renewals Project in 2006. Due to the nature of the Renewals Projects they were required to attend significant out-of-hours work. The Claimants were paid a half-yearly lump sum payment as compensation for working excessive out-of-hours attendance for the period from 2001 until 2005 and an annual payment for the period from 2006 until December 2009. The Union maintained that a similar payment should now be applied to the two Claimants as they are still required to attend excessive out-of-hours work.
Management does not accept the contention that the Claimants are required to attend excessive out-of-hours work and held that they have no contractual entitlement to receive overtime payments. Management stated that since the completion of the Renewals Projects the only works that they are specifically required to attend are “Non-Routine Operations Procedures”. Management held that the requirement to work overtime is limited as a direct consequence of the economic downturn and it held that the requirement to work out-of-hours should only occur after consultation with the Claimant’s Manager.
Having considered the submissions of both sides the Court notes the absence of verified records on the level of out-of-hours work attended by the Claimants since they transferred to the Service Delivery Construction Department. The Court is of the view that if there is a requirement for a significant level of out-of-hours work by the Claimants, then this information must be established to ascertain the extent of that requirement.
Accordingly, the Court recommends that records of out-of-hours attendance, properly managed and allocated by management to the Claimants, should be recorded for a period of six months commencing from 1st January 2012. When this information is collected it should be used to form the basis of further discussions between the parties in order to evaluate the claim in the light of the level of out-of-hours work attended. The issue of the appropriate salary band may have to be examined in the light of the information collected and management must ensure compliance with the Organisation of Working Time, Act 1997.
In the event that agreement cannot be reached between the parties on the claim before the Court following these discussions, then the issue may be referred back to the Court by the parties for a definitive Recommendation.
Signed on behalf of the Labour Court
17th November, 2011______________________
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.