Labour Court Database __________________________________________________________________________________ File Number: CD88259 Case Number: AD8828 Section / Act: S13(9) Parties: EASTERN HEALTH BOARD - and - FEDERATED WORKERS' UNION OF IRELAND;IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Unions and the Board against a Rights Commissioner's Recommendation concerning compensation for loss of earnings for 2 boilermen in Cherry Orchard Hospital.
Recommendation:
6. The Court, having considered the submissions from both parties
and noting that the Board has sustained the earnings of the 2
workers concerned from mid-October, 1987 (date of rationalisation)
to date, is of the view that the Rights Commissioner's
Recommendation is fair and accordingly the Court upholds the
recommendation and rejects the appeals.
Division: Ms Owens Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD88259 APPEAL DECISION NO. AD2888
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: EASTERN HEALTH BOARD
and
FEDERATED WORKERS' UNION OF IRELAND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Unions and the Board against a Rights
Commissioner's Recommendation concerning compensation for loss of
earnings for 2 boilermen in Cherry Orchard Hospital.
BACKGROUND:
2. The Hospital boilerhouse was operated by turf burning boilers
up to October, 1987. Operation of the boilers required 4
boilermen. At meetings on 19th June and 12th October, 1987, the
Board notified the Unions that they intended to fully automate the
boilerhouse at the Hospital. This was accepted by the Unions as a
normal change in the method of working which had already taken
place in a number of other hospitals. Agreement was reached that
redundancy would be offered to the 2 eldest boilermen, who have
since retired in accordance with the terms of the Governments
redundancy/early retirement scheme. The remaining 2 boilermen
would be redeployed to posts within the Hospital's maintenance
staff on a 9 a.m. to 5 p.m. basis. They would retain their higher
rate of pay as boilermen. The Unions claimed that compensation
should be paid to the 2 boilermen as the turf burning boilers had
operated on a round the clock basis and therefore, there was
considerable scope for enhanced earnings by way of shift
allowances and premium pay. The boilermen had enjoyed these
earnings over a considerable number of years and under the
redeployment would not be in a position to avail of any enhanced
earnings.
3. As no agreement could be reached at local level the issue as
referred to a Rights Commissioner for investigation. The Rights
Commissioner issued the following Recommendation on 8th January,
1988:-
"Recommendation
The Union Group has established to my entire satisfaction
that compensation of 48 times the weekly loss has been
established for this Grade in the Board. Accordingly, I must
hold with this clearly established precedent. The actual
agreed cash loss to each of the two men concerned is
£3,057.57 per annum, exclusive of overtime earnings. Whilst
wishing to preserve the Unions' hard won concessions, I
cannot ignore the very difficult financial position in which
the Board finds itself. Accordingly I must take all factors
into consideration. It is my intention therefore, to
discount from the computation of loss the difference in pay
rate for the work now assigned and that of a boilerman. I am
also ignoring loss of shift based holidays, which I do not
consider relevant.
On the basis that the Unions insist that each man be treated
equally, the formula I recommend for settlement is as
follows:
Weekly loss £58.80 less difference in value of work
assigned, (Boilerman = £159.58 - £144.17 General Operative
Rate) equals £15.41. Deduct this from £58.80 to leave
£43.39 net loss. Multiply this by 48 times equals
£2,082.72. I therefore recommend that each claimant
receives £2,082.72 in full and final settlement of all
their claims."
The Rights Commissioner's Recommendation was rejected by both
parties who appealed it to the Labour Court under Section 13(9) of
the Industrial Relations Act, 1969. The appeal was heard by the
Court on 28th April, 1988.
UNIONS' ARGUMENTS:
4. 1. The Unions believe that the Rights Commissioner's
Recommendation is inadequate and does not fully meet the
claim. In previous cases where boilerhouses have been
automated and staff redeployed, the settlements have ranged
from 2.5 times the annual loss to £5,000 per man. On another
occasion 48 times the weekly loss was given.
2. The claim is not for compensation for loss of overtime
earnings, it concentrates on the elements of loss of premium
pay and shift rate. The 2 boilermen have suffered great
inconvenience to their social and domestic lives over the
years because of their commitment to working the unsocial
hours and indeed, their willingness to provide a service at
times, when other colleagues were out sick, at great
inconvenience to themselves and their families.
3. The boilermen have also entered into financial
commitments such as mortgages, provision of transport etc...
because of the level of earnings to which they were
accustomed. They should not, therefore, be doubly penalised
over the change in operation of their workplace. They will
also suffer a loss in superannuation as a result of the
redeployment. The Unions contend that 2.5 times the annual
loss to the boilermen is fair and reasonable, or alternatively
that they maintain their current rate on a personal basis.
BOARD'S ARGUMENTS:
5. 1. The situation that arose in the Hospital is a redundancy
situation and the Board had considered offering redundancy to
the staff employed there. However, as a result of the
meetings with the Unions, the Board agreed to keep the
boilerman concerned in employment by redeploying them, despite
a directive from the Department of Health to reduce employment
numbers. If the Board had not been open to re-deployment both
men would have been given their redundancy entitlements and
the question of compensation would not have arisen.
2. The Board recognises that the boilermens' earnings will be
reduced by a certain amount as a result of the redeployment.
Because of this the Board have made provision to allow both
men retain their existing rate of pay as boilermen even though
their new posts carry a lower rate of pay in both cases
(details provided to the Court).
3. Whilst this has been a redundancy situation the fact that
the Board has preserved employment for the boilermen must be
regarded as a far greater concession by the Board on a
long-term and continuing basis rather than the payment of
compensation for the loss of earnings.
4. The boilerhouse was automated in mid-October, 1987 and
since then the boilermen have received full shift allowance
and premium payments pending the outcome of the claim, even
though they were not required to work unsocial hours.
Therefore they have received the benefit of a certain amount
of compensation.
5. The Board has paid compensation in similar circumstances
in the past, but this was when finances were more readily
available to the Board. The Board's allocation for 1988, from
the Department of Health falls for short of the estimated
requirement by over £6m. The Labour Court has recognised this
situation in previous cases (details provided to the Court).
The Board has no funds from which the cost of this claim can
be met.
DECISION:
6. The Court, having considered the submissions from both parties
and noting that the Board has sustained the earnings of the 2
workers concerned from mid-October, 1987 (date of rationalisation)
to date, is of the view that the Rights Commissioner's
Recommendation is fair and accordingly the Court upholds the
recommendation and rejects the appeals.
~
Signed on behalf of the Labour Court
Evelyn Owens
_________________________
23rd May, 1988. Deputy Chairman
B.O'N/J.C.