Labour Court Database __________________________________________________________________________________ File Number: CD88675 Case Number: AD8876 Section / Act: S13(9) Parties: NORTH WESTERN HEALTH BOARD - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. ST338/88 concerning shift premium.
Recommendation:
5. The Court, having considered the submissions made by the
parties, finds no grounds for altering the Rights Commissioner's
Recommendation which it upholds.
The Court so decides.
Division: Mr Fitzgerald Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD88675 APPEAL DECISION NO. AD7688
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: NORTH WESTERN HEALTH BOARD
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. ST338/88 concerning shift premium.
BACKGROUND:
2. The claim is in respect of approximately 27 female
domestic/attendant staff who work in St. Joseph's Hospital,
Stranolar, which caters for mentally ill and geriatric patients.
They work a repeating roster with a starting time of 8 a.m. and a
finishing time of between 4.45 p.m. and 5.15 p.m. Part-time
domestic staff are also employed at the hospital and work from
4.30 p.m. to 9.00 p.m. When a member of the part-time staff is
absent (through annual or sick leave) the hours of duty of one of
the full-time staff is changed to provide cover. This results in
one of the day staff working from 12.30 p.m. to 9.00 p.m. instead
of their normal roster. The Union is claiming a shift allowance
of time and one sixth for this work, arguing that male attendants
receive payment for shift work from 1.30 p.m. to 10. p.m. (as a
result of a Rights Commissioner's Recommendation in May, 1978).
Management rejected the Union's claim and as no agreement was
reached in local negotiations the dispute was referred to a Rights
Commissioner for investigation and recommendation on the 24th
June, 1988. On the 30th June, 1988 the Rights Commissioner issued
his recommendation is as follows:-
"I accept that the shift rate paid to the attendants is not a
proper shift payment. It was a mechanism to compensate them
on a personal basis. The Rights Commissioner stated inter
alia in Rec. C/M 6395....." but I do not agree that the four
employees are on a shift rota or that any of them has to work
shift within the present system." (para 6 refers).
If the attendants did not/do not work shift, then the
claimants who cover for them occasionally certainly do not do
so. Their duties do not form part of a recurring cycle as
required by the Shift Pay Regulation. However if the
claimants became part of a regular roster the Board would
have to concede their claim. I recommend that the parties
review the position in twelve months time with a view to
establishing in the meanwhile, the incidence of such work by
the claimants."
The Union rejected the Rights Commissioner's Recommendation, and
on the 10th August, 1988 appealed it to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. A Court
hearing took place in Letterkenny on the 30th November, 1988.
UNION'S ARGUMENTS:
3. 1. As a result of a Rights Commissioner's Recommendation
(C.M. 6395 in May, 1978) male attendants receive payment for
shift work from 1.30 p.m. to 10.00 p.m. Furthermore Labour
Court Recommendation No. 7001 recommended "that workers who
have a starting time variation of at least four hours and a
difference between the earliest and latest finish of at least
twelve hours should be paid a shift allowance of one sixth."
2. While the cover for the part-time staff who serve suppers
is allocated to female staff at the moment, it is a fact that,
if male attendants were capable of doing this work, they would
be paid a shift rate. The temporary and part-time attendants
on suppers, work from 4.30 p.m. to 9.00 p.m. Following Rights
Commissioner's Recommendation C.M./6395, another rota was
introduced for a number of years from 12.30 p.m. to 9.00 p.m.
for male attendants and a shift premium was paid to these
workers.
3. The Union contends that the hours worked on an
intermittent basis by its members on supper duties constitutes
a shift and unsocial hours and merits the application of a
premium of time and one sixth. When full time staff give
cover for supper duties their normal hours of work are
disrupted and the Union is appealing to the Court to recognise
this fact.
BOARD'S ARGUMENTS:
4. 1. The staff concerned are rostered to this late cycle of
duty on a very intermittent basis (details supplied to the
Court). The criteria used by the Board for the payment of
shift premium is as follows:-
(i) Where, as part of a recurring cycle, two or more periods
of duty in a week commence earlier than 8.00 a.m. or
later than 12 noon, shift premium can be paid.
(ii) The very occasional assignment of staff to a late duty
does not meet this criteria. Shift premium is paid to
staff who work irregular hours on an on-going basis.
This position does not apply to the staff concerned.
2. This occasional change of duty is necessary to cover the
work of the part-time staff. These part-time staff are not in
receipt of shift premium. The nursing staff at the hospital
are assigned to a 12.30 p.m. to 9.00 p.m. duty and do not
receive shift premium. The concession of this claim would
have major repercussions within the hospital, and indeed
within the Board, where this type of duty is worked by a large
number of both nursing and non-nursing staff.
3. The Board could have proposed an alternative rostering
arrangement to provide the necessary cover for part-time
staff. This however would have entailed a "split day" and
Management felt that this arrangement would have been less
acceptable to staff.
4. The Board does not accept that the claimants' position
relates in any way to the porter/attendant staff (referred to
in Rights Commissioner's Recommendation C.M./6395). These
staff are regularly assigned to a 1.30 p.m. to 10.00 p.m.
roster of duty. Although their present rostering arrangement
does not meet the current shift criteria the Board has
continued to apply the terms of Recommendation C.M./6395 on a
personal basis to the workers concerned because of the
regularity of their late duty. If, by doing this, the Board
leaves itself open to successful claims for parity from other
groups of staff, the overall rostering position would have to
be reviewed.
DECISION:
5. The Court, having considered the submissions made by the
parties, finds no grounds for altering the Rights Commissioner's
Recommendation which it upholds.
The Court so decides.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
__________________________
19th December, 1988. Deputy Chairman
T.O'D./J.C.