Labour Court Database __________________________________________________________________________________ File Number: CD89851 Case Number: LCR12772 Section / Act: S67 Parties: EASTERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dispute concerning subsistence allowance payments for ambulance personnel in Wicklow.
Recommendation:
5. The Court has fully considered the situation as outlined by
the parties in their oral and written submissions. The Court
notes
(a) Subsistence allowances are governed by regulations which
are amended from time to time by agreement.
(b) Subsistence is paid in accordance with the regulations in
respect of necessary absence of employees from "base" or
"headquarters."
(c) Notwithstanding financial constraints the rates in
respect of subsistence have been increased from time to
time.
(d) Payments in accordance with the regulations are universal
in Health Boards, Local Authorities and the Public
Service.
The Court is fully aware of the financial constraints placed on
the public sector including the Eastern Health Board.
It is the view of the Court however that a unilateral
interpretation of the regulations should not be made for the
purpose of achieving savings.
The regulations already place an obligation on the organisation to
ensure the absence of employees are planned in such a way as to
reduce the cost to the minimum consistent with efficiency.
Given the above the Court considers that subsistence payments
should be made strictly in accordance with the provisions of the
regulations and in accordance with the accepted definition of
"headquarters."
The Court so recommends.
Division: MrMcGrath Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD89851 RECOMMENDATION NO. LCR12772
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: EASTERN HEALTH BOARD
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dispute concerning subsistence allowance payments for
ambulance personnel in Wicklow.
BACKGROUND:
2. In 1987 due to a shortfall in its budget the Board adopted a
survival plan, one of the measures of which was that subsistence
allowances would no longer be paid to staff when working in the
Board's area (they would continue to be paid for absences outside
the Board's area). Subsistence allowances at that time were paid
at the rate of #13.56 for absences of ten hours or more and #5.54
for absences of five hours but less than ten hours. At a meeting
held in May, 1987 the Union was advised of the budgetary measures
to be taken and the Board identified the need to make savings of
#20,000 in 1987. Following discussions the Board agreed to pay
the lower rate of subsistence allowance for all absences over five
hours. The Union referred the matter to the Rights Commissioners
service and hearings took place on 6th and 29th July, 1987. The
Rights Commissioner recommended that the Union accept the Board's
proposals and also provided for a review of savings made in 1987
to be carried out. In July, 1988 the Union requested the Rights
Commissioner to review the matter. The Rights Commissioner
investigated the matter in October, 1988 and recommended that the
parties engage the I.P.C. to establish if the #20,000 target was
achieved. The Board appealed the Rights Commissioner's
recommendation to the Labour Court and the Court's decision
(AD6489 of 20th September, 1989) was as follows:
"Having considered the submissions from both parties the Court
is of the view that the Rights Commissioner's recommendation
that the I.P.C. be employed to establish the facts of the
claim is not appropriate in the circumstances. The Court
accordingly upholds the Board's appeal and so decides."
Following this a local level meeting took place on 26th October,
1989. The Union's position was that the Court's decision dealt
only with the issue of the I.P.C.'s involvement in the claim and
did not deal with the issue of the reduction of the subsistence
allowance. The Board's position was that the full industrial
relations machinery had been used and that there had been no
recommendations to reintroduce the higher rate of subsistence
allowance payments. On 8th November, 1989 the matter was referred
to the conciliation service of the Labour Court. A conciliation
conference was held on 17th November, 1989 at which no progress
was made and on 20th November, 1989 the matter was referred to the
Labour Court for investigation and recommendation. The Court
investigated the dispute on 21st December, 1989.
UNION'S ARGUMENTS:
3. 1. The two tier system has been in operation for twenty seven
years. The Board had no moral or legal basis for altering
agreed working practices and payments. In the context of the
Programme for National Recovery under the terms of which
workers may not serve claims which exceed the wage increase
provisions, it must be contrary to the Programme for an
employer to reduce already agreed payments irrespective of
their nature.
2. No other Health Board has implemented a similar measure
and it is unacceptable that the workers in Wicklow should be
treated like this. In addition, within this Health Board's
ambulance service itself, the workers in Wicklow are treated
less favourably than their colleagues in Dublin in relation to
wages, etc. The Wicklow ambulance personnel have suffered
enormous reductions in their salaries over the last number of
years (details supplied to the Court), and the elimination of
the long established subsistence agreement is unacceptable.
3. The Board has stated that the subsistence allowances
should never have been paid. However the Union rejects this
interpretation as in accordance with circular 11/82 the
workers qualify for the full entitlements. In addition, while
on the one hand management is abolishing allowances, on the
other certain allowances are being increased (details supplied
to the Court). The original twenty seven year old two tier
subsistence agreement should be restored.
BOARD'S ARGUMENTS:
4. 1. The Board does not accept the Union's contention that
Labour Court Decision AD 6489 only dealt with the matter of
the I.P.C.'s involvement and did not address the issue of the
reduction of the subsistence payments. The Court was
cognisant of all aspects of this claim when it upheld the
Board's appeal and therefore the issue of the reduction of the
subsistence allowance was dealt with in AD6489. The claim for
restoration of the higher rate of subsistence allowance has
already been the subject of two Rights Commissioners'
Recommendations and a Labour Court Decision, none of which
have recommended restoration of the higher rate of allowance.
2. The Board's 1988 allocation from the Department of Health
contained a reduction of #6.112m on the 1987 allocation. In
addition to this the 1989 allocation contains yet another
reduction of #5.119m on 1988 levels. Therefore, the present
financial position is much worse than that which existed when
the higher rate of subsistence allowance was abolished. The
Board has adopted a further budget strategy for 1989, part of
which requires payroll savings of #1m to be made. This
reduction must be made from a payroll budget which does not
include subsistence payments. Therefore, the Board does not
have the funds either to restore the higher rate of
subsistence allowance or to pay compensation in respect of its
loss. The Board's budgetary measures have been the subject of
Labour Court investigations in the past and the Court has
rejected loss of earnings claims, etc (details supplied to the
Court).
3. The Board's directive on the non payment of subsistence
allowance for absences within its area affected two hundred
other workers who had previously received the subsistence
payments. The ambulance staff in Wicklow and Kildare are the
only group of workers who continue to receive a subsistence
payment (although at the reduced rate) for absences within the
Board's area. In addition, payment of subsistence allowances
should never have been made for absences within the Board's
area according to the circular from the Department of Health
on subsistence allowances, as canteen facilities are available
in all of the Board's hospitals. Concession of the Union's
claim would have serious repercussive effects as there would
be claims from the other workers within the Board's area.
RECOMMENDATION:
5. The Court has fully considered the situation as outlined by
the parties in their oral and written submissions. The Court
notes
(a) Subsistence allowances are governed by regulations which
are amended from time to time by agreement.
(b) Subsistence is paid in accordance with the regulations in
respect of necessary absence of employees from "base" or
"headquarters."
(c) Notwithstanding financial constraints the rates in
respect of subsistence have been increased from time to
time.
(d) Payments in accordance with the regulations are universal
in Health Boards, Local Authorities and the Public
Service.
The Court is fully aware of the financial constraints placed on
the public sector including the Eastern Health Board.
It is the view of the Court however that a unilateral
interpretation of the regulations should not be made for the
purpose of achieving savings.
The regulations already place an obligation on the organisation to
ensure the absence of employees are planned in such a way as to
reduce the cost to the minimum consistent with efficiency.
Given the above the Court considers that subsistence payments
should be made strictly in accordance with the provisions of the
regulations and in accordance with the accepted definition of
"headquarters."
The Court so recommends.
~
Signed on behalf of the Labour Court
Tom McGrath
___________________________
9th April, 1990 Deputy Chairman.
U.M./J.C.