INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. Allocation of overtime.
2. This case concerns a dispute between the Company and Union in relation to the allocation of overtime. An annualized hours system operates in respect of permanent employees. Temporary staff are paid on an hourly basis and do not participate in the annualized hours scheme. The Union argues that overtime, where and when it arises, should be allocated equally between both categories of staff. Management argues that it is fairer and more cost-effective to allocate overtime to temporary Workers in the first instance as their rate of pay is lower than permanent staff and unlike permanent staff they do not enjoy comparable levels of guaranteed overtime. Management further argues that it would be more cost effective and preferable to employ additional staff than allocate overtime hours to permanent staff at the premium rates of pay that apply to those Workers.
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 back to the Labour Court on the 21st May, 2012, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 31st August, 2012.
3. 1 The Permanent staff has engaged proactively with Management in securing the future viability of the Company. This has led to a reduction in their rates of pay and conditions of employment that has very seriously affected their earning capacity. Management's current proposals to deny them access to overtime amounts to an unfair discrimination against them that denies them the opportunity to restore a portion of the earnings they have surrendered as part of the viability Agreement they reached with the Company.
2 Permanent staff argue that they are entitled to access overtime on an equal basis to temporary staff, at the agreed rate of pay. To treat them otherwise is discriminatory and unfairly deprives them of an opportunity to make up some of the earnings they surrendered in the survival Agreement.
4. 1. The Agreements concluded between the parties and the positive engagement of the workforce has resulted in the continued survival and future viability of the Company. At present there is no overtime needed but in the event that customer demand increases, it would be more cost-effective to pay overtime rates to temporary agency Workers as they have a lower rate of pay.
2 The Company will endeavour to provide greater employment opportunities into the future should the need arise. This would be the preferable option and will result in a reduced need for overtime payments.
The Court has carefully considered the submissions of both parties to this dispute.
The case was considered by the Court under the provisions of Section 26(1) of the Industrial Relations Act 1990 and has made this Recommendation in that context.
Allocation of Overtime
The Court notes that current staff work a 43.4 hour week, the overtime element of which, in accordance with the provisions of the revised 2009 Annualised Hours Agreement, attracts a premium of 1.8 times basic pay. The Court proposes no change to this arrangement. The Court also notes that Agency Workers and all newly-appointed staff work a standard working week of 40 hours. The Court proposes no change to this arrangement either. With regard to overtime in excess of these arrangements, the Court recommends that the Company make such non-obligatory overtime available to each category of Worker in proportion to the numbers employed in the respective categories. Overtime not taken up by a category should thereafter be opened to the members of the other category(ies) and allocated on a rotational basis to be agreed between the parties.
Rate of Pay for Overtime Work
The Court finds that staff employed under the terms of the 2009 Annualised Hours Agreement are paid a weekly rate of pay that amounts to 46.92 adjusted hours per week (39-hour week +4.4 x 1.8 times the hourly rate). The Court takes the view that overtime is normally paid at the rate of 1.5 times the hourly rate of pay calculated on the basis of a 39-hour working week. The Court sees no reason to depart from that practice in this case. Accordingly, the Court recommends the following formula for calculating the hourly overtime rate for this group of Workers:-
Hourly overtime rate of pay = ((Weekly pay / 46.92)x1.5)
The Court recommends that the hourly rate of pay of all other category(ies) of staff be calculated on the basis of a standard 39-hour week in the normal way.
The Court so recommends.
Signed on behalf of the Labour Court
25th September 2012______________________
Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.