Courts

ESB technicians who claimed overtime ‘deliberately’ held up last Christmas lose all test cases in payroll row

Independent Workers’ Union said members’ position was that the company was not entitled to ‘enforce’ change to their working conditions without agreement

In his decision, adjudicating officer Jim Dolan found that the new payment app was 'not even a significant change to general work practices, but a relatively minor change'. Photograph: Colin Keegan, Collins Dublin

Stephen Bourke
Wed Dec 28 2022 - 18:02

ESB workers who accused their bosses of unlawfully withholding overtime after they refused to use a new timekeeping app have lost a series of test cases at the Workplace Relations Commission.

Ten test cases in the dispute, which affects some 236 network technicians in the Independent Workers’ Union who complained en masse last spring, were rejected by the tribunal in decisions published this week.

The tribunal heard that the ESB previously used a specialist scanner to process paper timesheets filled out by its staff recording overtime – but deemed the technology obsolete and moved to replace it in early 2021 with a mobile application called MyTime.

Industrial relations consultant John Keenan, who appeared for the workers, said the app had been part of a proposed industrial agreement called Building a Better Climate, which was not approved until March 2022 by a ballot of members of other trade unions at ESB Networks. The agreement was not approved by IWU members.

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His members’ position was that the company was not entitled to “enforce” a change to their working conditions without agreement.

Union policy was for members not to use the app – and ultimately 236 of the more than 400 network technicians continued to send in paper timesheets after the scanner was disposed of by management.

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ESB Networks employee relations officer Darragh Horan said all paper timesheets had to be entered into the accounting system by hand, one by one, by six staff in its Galway office, who could not keep up with the volume.

“We don’t want to see people waiting on overtime payments, but ultimately these guys have made the decision not to use the MyTime system which is the only system available to pay overtime and allowances,” he added.

Lorna Lynch SC, appearing for ESB Networks, said at a hearing in July the company was up to date on the payments owed to the test case workers in the six months prior to their complaints being submitted.

Mr Keenan said the payroll delays were a “penalty” for not signing up to the MyTime app and that the company had acted “deliberately” in the matter. He submitted that union members had lost an average of €800 per week with arrears building to several thousand – peaking at €15,000 in the case of one complainant.

He said they were “entitled to be completely aggrieved” about being owed thousands.

“Other workers would set a light to the blooming place,” he added.

“Contrary to Mr Keenan’s opinion, the courts have found the ESB cannot be forced to negotiate with the IWU,” said Ms Lynch.

She said the vast majority of ESB Networks technicians “don’t agree” with the IWU position.

Ms Lynch added there had been no change to terms and conditions of employment and that the statutory pay claims could consider the six-month period up to January 2nd 2022, when they were submitted.

“None of the 10 employees have presented you with evidence of the amount of money owed to them pre-complaint and [which] is still owing to them,” she said.

She said the company had confirmed that any payment due prior to the submission of the complaints had already been processed, and none of the complainants had disputed that.

“All those claims are now moot,” she said.

In his decision, adjudicating officer Jim Dolan found the new payment app was “not even a significant change to general work practices, but a relatively minor change” and that there was no need for an employer to obtain individual consent in writing when there was a collective agreement in place.

He found there had been no unilateral change to the complainants’ terms and conditions over the introduction of the MyTime app.

In each of the 10 test cases he found that sums ranging from €250 to €4,567 due to the complainants were due at the time the complaints were submitted on January 2nd.

He wrote that these had been paid late in each case between February and June – in advance of the adjudication hearing in July. The average sum due was €1,864.

“The payment was delayed; this does not amount to an unlawful deduction. This complaint is not well-founded,” Mr Dolan wrote of the pay claims.

Mr Dolan also found “no causal link with delayed payment and IWU membership” as the evidence was that members of the union were using the MyTime app and some non-IWU staff were also refusing the app and experiencing delays.

He also rejected the victimisation claims in all cases.

The representative complaints against ESB Networks DAC taken by Stephen Darling, Sean Meyler, Liam O’Grady, Gerard Tuohy, Oisin Mahon, Greg Victory, Des Summerville, Michael Dolan, Brian Baitson and Shane Flynn, were heard under the Payment of Wages Act, the Terms of Employment (Information) Act and the Industrial Relations Act.

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