Labour Court Database
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File Number: CD86922
Case Number: AD874
Section / Act: S13(9)
Parties: BORD NA MONA - and - FWUI
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Subject:
Appeal by the Board against a Rights Commissioner's recommendation concerning compensation for a drop in the rate of pay following transfer.
Recommendation:
5. The Court, having considered the submissions made by the
parties, agrees with the Rights Commissioner's view that the case
is marginal but that the balance is sufficient to warrant a
recommendation that the Union's claim should be conceded. The
Court therefore, upholds the Rights Commissioner's recommendation.
Division: CHAIRMAN Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD86922 THE LABOUR COURT AD4/87
INDUSTRIAL RELATIONS ACTS, 1969
APPEAL DECISION NO. 4 OF 1987
Parties: BORD NA MONA
and
FEDERATED WORKERS' UNION OF IRELAND
Subject:
1. Appeal by the Board against a Rights Commissioner's
recommendation concerning compensation for a drop in the rate of
pay following transfer.
Background:
2. During 1985 a total of eleven employees at Derrinlough
Engineering Works were offered and accepted seasonal employment,
at Boora and at Blackwater works. The Union subsequently
negotiated an agreement whereby the Derrinlough Engineering
Workers were placed in permanent positions because an equal number
of long serving permanent workers in those works opted to take
seasonal employment. Most of the workers who were transferred
retained their rate of pay in their new positions. However, two
of the workers concerned did suffer a reduction in their basic
rate of pay. Accordingly, the Union, on behalf of the workers,
sought the application of the "drop in rate" formula previously
agreed with the Board. Management rejected this claim on the
grounds that the "formula basis" of compensation had been
negotiated for a completely different set of circumstances and had
only been applied in situations where individuals had no option
but to accept lower paid jobs as a result of a Management
decision. As agreement could not be reached on the matter at
local level the issue was referred to a Rights Commissioner for
investigation and recommendation. On 8th October, 1986, the
Rights Commissioner issued the following recommendation in the
matter:
"There was absolutely no coercion or undue pressure from
Management to get them to apply for transfer but there
were pressures on them through fear of redundancy. The
decision was not therefore entirely voluntary and their
going to another Works was of benefit to Bord na Mona.
While the case is marginal the balance is enough to the
Union's advantage to warrant a recommendation that the
claim be conceded."
On 20th November, 1986, the Board appealed the Rights
Commissioner's recommendation to the Labour Court. A Court
hearing took place on 17th December, 1986 in Dublin.
Union's arguments:
3. (i) In accordance with the agreed formula in the industry
for compensating workers required to transfer from a
higher rate to a lower rate job, both workers are
entitled to "a month's drop in basic rate for each year
of continuous service plus a normal week's basic pay."
(ii) It should be noted that this formula refers to rate,
and not to earnings which can fluctuate from time to
time in Bord na Mona.
(iii) Insofar as the threat of redundancy was hanging over
the workers the decision to transfer was not entirely
voluntary. This aspect of the situation was a major
factor in the workers' decision to transfer.
Companys arguments:
4. (a) The formula basis for compensation does not apply in
this case. Heretofore, it has only applied in
circumstances where individuals had no option but to
accept lower paid jobs as a result of a management
decision.
(b) In this case, both workers knew the details of the
positions, and they accepted the jobs as offered.
(c) Management does not accept the suggestion in the Rights
Commissioner's recommendation that the worker's
decision to apply for the seasonal positions in Boora
was "not entirely voluntary." If this were the case it
could be argued that no decision is ever voluntary
because all decisions are influenced by the
circumstance of the time.
(d) The workers concerned have not suffered a drop in
earnings since moving to Boora. Management can
demonstrate that there was actually an increase in
earnings in the fifteen months since the move as
compared with the previous fifteen months (details with
Court).
DECISION:
5. The Court, having considered the submissions made by the
parties, agrees with the Rights Commissioner's view that the case
is marginal but that the balance is sufficient to warrant a
recommendation that the Union's claim should be conceded. The
Court therefore, upholds the Rights Commissioner's recommendation.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
___________________________
Deputy Chairman.
22nd January, 1987.
P.F./J.C.