Labour Court Database __________________________________________________________________________________ File Number: CD87344 Case Number: LCR11303 Section / Act: S67 Parties: S.H.B. - and - ITGWU |
Claim for compensation for loss of overtime earnings.
Recommendation:
5. The Court having considered the submissions made by the
parties is of the opinion that changes made by the Board and the
consequent loss of earnings are directly related to the stringent
financial constraints under which the Board is presently operating
and since none of the losses derive from regular rostered overtime
the Court does not recommend concession of the Union's claim.
Division: Mr O'Connell Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD87344 THE LABOUR COURT LCR11303
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR11303
Parties: SOUTHERN HEALTH BOARD
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Claim for compensation for loss of overtime earnings.
Background:
2. This claim concerns twenty seven ambulance workers employed by
the Board at the Cork regional hospital. In December, 1986 the
Board informed the workers that the arrangements for "on-call"
working were being changed. The Union identified a number of
areas where a loss of overtime earnings would result for the
workers. The Union quantified the loss as #5,800 and claimed a
compensation payment of one and a half times the yearly loss i.e.
#8,700. The Board rejected the claim. No agreement was reached
through local negotiations and on 13th March, 1987 the matter was
referred to the conciliation service of the Labour Court.
Conciliation conferences were held on 19th and 25th March, and
22nd April, 1987 but no agreement was reached. On 24th April,
1987 the case was referred to the Court for investigation and
recommendation. A Labour Court hearing was held on 16th June,
1987 in Cork. An earlier date was unsuitable to one of the
parties.
Union's arguments:
3. (i) The existing "on-call" arrangements were in operation
by agreement since 1982. Under these arrangements the
workers, in addition to their normal forty hour week,
must also be available for an average of eight hours
each week during which they must respond to any call
and report for additional duty. The fact that the
"on-call" crew were required to be called in under
certain specific circumstances guaranteed a minimum
level of earnings as well as the "on-call" payment of
#5.68 per week. It is unacceptable to expect ambulance
drivers to give eight (8) hours per week "on-call"
availability for a payment of #5.64 without any
potential for extra earnings from "on call."
(ii) The workers have a basic pay of #168.66 for a forty
hour week but they are in effect working a forty eight
hour week for #174.34. This is the equivalent of #144
for forty hours.
(iii) A driver employed outside of Cork city has guaranteed
earnings from "on-call" in the sense that if a call
arises in his area he has to be called to answer this
call. Cork city drivers have been in a disadvantageous
position with regard to "on call" earnings since 1978
as other means of transport have been used for
"on-call" work. The position has now worsened as extra
earnings from "on-call" have been virtually eliminated.
This situation is intolerable and emphasises the need
to restore the pre 1978 guaranteed minimum "on call"
payment. This is the only way to restore fairness in
the "on-call" situation for ambulance drivers in Cork
city. The workers should be compensated for the loss
of earnings suffered so far, by receiving 78 times the
weekly loss.
(iv) The Union estimate the overall loss in earnings to be
in excess of #4,500 per annum over last years earnings.
This represents a loss of #90.00 per week in wages.
This has caused serious financial problems for many
drivers who have made commitments on the basis of those
earnings. This is especially the case with regard to
"on call" earnings which were guaranteed.
(v) Successive agreements over the years established
minimum levels of earnings from "on-call." The 1978
national ambulance agreement while altering the method
of payment for "on-call" was meant to ensure proper
compensation to the workers. Indeed the employers at
that time used the argument that the additional work
from the "on call" ensured drivers extra earnings and
that there was no need to have the minimum "on call"
allowance of time plus one sixth.
(vi) Managements decision effectively eliminated extra
earnings from "on-call" duty. During discussions
Management maintained that "on call" working was being
eliminated because the calls that the "on call" crew
would normally perform would be eliminated. In fact
what happened was that calls that would previously have
been performed by the "on call" crew were given to the
two emergency ambulances on duty, with these calls
being re defined as "emergency calls." In some cases
the Cork fire brigade were used to make up deficiencies
in the emergency cover. This is an infringement of an
agreement made with the Union in 1978 whereby the Cork
fire brigade were to be eliminated from performing
ambulance calls. It is difficult to give a precise
figure on the loss of earnings for the workers because
"on-call" overtime is not defined separately to other
casual overtime. However it is estimated that the loss
to each driver is somewhere in the region of #1,300.00
per annum. There is also a loss of approximately
#200.00 per annum in travelling expenses.
(vii) Once again it is difficult to give precise figures for
a loss of overtime earnings from working days off,
because it would be necessary to obtain an average of
these earnings over the past eight years. However,
last year, which was an unusual year in this respect
brought earnings of approximately #2,500 per driver.
These earnings which have now been almost totally
eliminated, were abnormally high because of the
increased incidence of cover. The actual loss had a
normal situation prevailed would be approximately
#1,300.00 per annum, or #25.00 per week.
(viii) Management arbitarily reduced the ambulance cover on
bank holiday day shifts by one quarter from four
ambulances to three. This has resulted in a loss of .6
of a day for each driver.
(ix) Previously, if a driver was on duty on the 5 p.m. to
midnight shift, and "on-call" from midnight, if he
received a call that took him into his "on-call" period
he received a guaranteed payment of one hour.
Management have now ended this minimum payment except
where the driver is actually called in on duty.
Management have also announced that the call crew will
not be called in at all this means the minimum hour
guaranteed in all previous agreements will not apply.
We estimate the average loss to be one half hour per
driver per week at double time approximately #4.20 per
week.
(x) There has also been a reduction of casual overtime.
This loss is difficult to estimate at this time as not
all of it has been cut.
Board's arguments:
4. (a) The Board rejects the principle that it should have to
pay compensation where overtime working has either been
reduced or has ceased.
(b) Some years ago the Board agreed to a proposal from the
Union that full-time drivers would be employed as
relief drivers to enable drivers to be given their
annual leave each year without the necessity to employ
casual untrained drivers. The Board now employs five
trained drivers in a full-time permanent capacity for
the purpose of providing relief during holidays. The
five drivers are in a position to provide full cover
for the annual leave each year and no overtime
therefore, need arise in relation to absence on annual
leave. There is, therefore, no expectation of overtime
for this purpose.
(c) The Union has included in its claim, compensation for
loss of overtime arising from journeys which are
undertaken prior to finishing time but which do not end
until after finishing time. The Board has made no
changes which would affect such overtime arising. The
amount of time on which any driver would be required to
work after finishing time to complete his journey
cannot be foreseen. It is a variable factor and will
continue to be so. The Board sees no justification for
a claim for loss of overtime under this heading.
(d) The Board accepts that a practice had grown up of
leaving some routine calls until after 5.00 p.m. and
these were dealt with by the "on call" crew who were
paid on an overtime basis for the actual time worked.
The practice of dealing with routine calls after 5.00
p.m. was never intended and there could not have been
an expectation on the part of ambulance drivers that
such a practice would continue particularly in times of
financial restraints. The "on call" crew will, of
course, continue to be called on for emergency purposes
and will be paid overtime on the basis of hours worked.
The services of the "on call" crew will be availed of
only to deal with emergency situations, e.g. a driver
not reporting for duty at 5.00 p.m. or in the event of
one of the two emergency ambulances undertaking a
journey to Dublin. Overtime earned by "on call"
drivers varies in accordance with the needs of the
service and the claim for loss of earnings cannot be
sustained.
(e) On bank holidays ambulances on duty are reduced from
six to three. It has always been accepted that the
ambulance supervisor could decide to have an additional
ambulance on duty on a bank holiday if he considered
that the circumstances would warrant it. This would
arise on occasions when large crowds would be expected
to attend matches, parades or other functions. The
supervisor has now been instructed that only three
ambulances are to be rostered for duty on bank holidays
in view of the financial constraints on the Board. The
supervisor will still have the authority to make an
exception to this rule should the circumstances warrant
it. Again it would not be reasonable for drivers to
have assumed that the practice of having an additional
ambulance on duty on a bank holiday would continue for
any definite period and a claim for compensation for
loss of earnings could not be conceded.
(f) Overtime worked in situations like those which arose
last year where two workers were on long term sick
leave and two workers were under prolonged suspension
could not have given rise to expectations that such
overtime would continue. The Board could not agree
that a claim for compensation for loss of overtime
earnings in such circumstances should be conceded.
(g) Overtime working in the Board has been virtually
eliminated over the past year or two due to the
financial constraints on the Board and also due to the
policy of providing additional employment rather than
overtime working. In a situation where overtime has
been abolished mainly due to financial constraints and
Government directives, a claim for compensation for
loss of overtime should not be conceded.
(h) The Board has no funds from which the present claim
could be met.
RECOMMENDATION:
5. The Court having considered the submissions made by the
parties is of the opinion that changes made by the Board and the
consequent loss of earnings are directly related to the stringent
financial constraints under which the Board is presently operating
and since none of the losses derive from regular rostered overtime
the Court does not recommend concession of the Union's claim.
~
Signed on behalf of the Labour Court
John O'Connell
_________________________
Deputy Chairman
9th July, 1987
T.O'M/J.C.