Labour Court Database __________________________________________________________________________________ File Number: CD90392 Case Number: LCR13076 Section / Act: S67 Parties: SOUTH EASTERN HEALTH BOARD - and - AMALGAMATED ENGINEERING UNION |
Claims concerning: (a) Compensation for 41 hour week. (b) Paid educational leave. (c) Compassionate leave.
Recommendation:
12. Having considered the submissions from both parties the Court
recommends as follows with respect to the 3 items claimed.
(a) Compensation for 41 hour week
The Court recommend that the Board agree to pay the 1
hour worked by the claimants in respect of the period 1st
January, 1982 to 25th September, 1989 or whatever shorter
period was involved. The payment to be calculated at
appropriate various basic hourly rates which applied
throughout the period.
(b) Paid Educational Leave
In view of the delay in determining the application for
educational leave which is not good industrial relations
practice the Court recommends in the particular
circumstances that the claimant be granted 3 days special
leave.
(c) Compassionate Leave
The Court is of the view that the Board acted in
accordance with the terms of the Departmental circular
and accordingly does not recommend concession of the
claim.
Division: Ms Owens Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD90392 RECOMMENDATION NO. LCR13076
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: SOUTH EASTERN HEALTH BOARD
(ST. DYMPNA'S HOSPITAL, CARLOW)
and
AMALGAMATED ENGINEERING UNION
SUBJECT:
1. Claims concerning:
(a) Compensation for 41 hour week.
(b) Paid educational leave.
(c) Compassionate leave.
GENERAL BACKGROUND:
2. The parties could not reach agreement on the above mentioned
claims and on 24th November, 1989 the matters were referred to the
conciliation service of the Labour Court. A conciliation
conference was held on 5th April, 1990 at which settlement was not
reached and on 13th July, 1990 the matters were referred to a full
hearing of the Labour Court. The hearing took place in Kilkenny
on 9th October, 1990.
Claim (a) Compensation for 41 hour week
BACKGROUND:
3. Following national agreements for craftsmen and general grades
in 1977/78 the working week was reduced from 41 hours to 40 hours.
The Board concluded agreements with most of its employees on the
one hour reduction at that time. In 1977 there were 5 general
operatives employed at St. Dympnas Hospital who regularly worked
41 hours per week. The extra hour was a special local arrangement
whereby the workers commenced work before the craftsmen to lay out
tools etc. In 1982 the pay scales for general operatives were
revised and the workers concerned continued to work a 41 hour week
at the new rates. However for some unknown reason they were not
paid for the extra hour worked. The Union maintains that the
claim for the additional hours pay was raised on several occasions
but was never resolved. In 1989 the Union pursued the matter in
correspondence with the Board. The Board agreed that the hours of
work of the workers concerned should be reduced to 40 from 25th
September, 1989 but rejected the claim for compensation. Of the
original 5 general operatives only three are now employed at the
hospital.
UNION'S ARGUMENTS:
4. 1. From 1st January, 1982 to 25th September, 1989 the workers
concerned worked a 41 hour week but were only paid for 40
hours. The Union's claim is for payment in respect of those
hours worked and not paid for.
2. Since 1st January, 1982 all the other grades in the
Board's area operated a 40 hour week and were paid overtime on
the basis of one fortieth of the basic rate. The workers
concerned should be compensated for their loss due to the
failure of the Board to pay them their overtime earnings from
1982 to 1989.
BOARD'S ARGUMENTS:
5. 1. Agreements were entered into by the Board over the years
under the auspices of the 1978 national agreement whereby
staff were afforded the reduction in working hours in other
centre's within the South Eastern Health Board area. No such
agreement was made in respect of staff employed at St.
Dympna's nor was there ever any request to do so. To seek
compensation now for an apparent oversight does not amount in
the Board's view to fair play.
2. The staff concerned were correctly paid in accordance with
the agreed rate for the job and the additional one hour was
correctly regarded as part of basic hours and not as
additional time which would attract overtime rates. Overtime
would only have been paid for any hours worked in excess of 41
hours.
3. The Board has accepted following a review of practises at
the hospital that a 40 hour week is possible and has already
agreed to implement this reduction with effect from the 25th
September, 1989. The Board has now implemented a 39 hour week
for the staff concerned and the Board may be faced with a
further compensation claim in respect of its failure to honour
the 39 hour week. The Board's financial position does not
allow for payment of compensation as claimed by the Union.
Claim (b) paid educational leave
BACKGROUND:
6. The Union wrote to the Board on 12th May, 1989 and 17th
August, 1989 seeking the paid release of a shop steward to attend
a three day induction course in new technology from the 26th to
28th September, 1989. On 28th August, 1989 the Board replied
seeking details of the course content which the Union forwarded on
31st August, 1989. A final reply was not received from the Board
and the shop steward attended the course. On 28th September, 1989
the Union wrote to the Board again about the matter. On 9th
November, 1989 the Board replied that in the view of the technical
services officer the course was not appropriate. The Board is not
prepared to sanction paid leave for attendance at the course. The
Union claims that the three days annual leave should be restored
to the shop steward.
UNION'S ARGUMENTS:
7. 1. It is both normal and good industrial relations practice
for employers to agree paid release leave for shop stewards to
attend trade union courses. There is no reason why the Board
or the Hospital should be the exception to this practice.
2. The Union does not accept that the course was not
appropriate. Of the 17 participants in the course the Board
was the only employer who refused to grant paid leave.
3. The Board was given ample time to consider the application
for paid leave. The failure by the Board to reply to
correspondence and communication in reasonable time merits
concession of the Union's claim.
BOARD'S ARGUMENTS:
8. 1. The application for paid leave to attend this course was
considered at length by the Board's technical services officer
and his evaluation led him to the conclusion that this type of
course was not relevant in the context of any likely future
developments at the hospital.
2. The Board exercise's great care in relation to course
approvals/training requirements and is only prepared to
support those courses/training programmes that are of
relevance to the service needs as distinct from any benefits
that may accrue to the individual. Resources only permit the
Board to consider courses in this narrow context.
3. The Board regrets that a response to the application for
paid leave was not communicated until after the course was
organised but this did not preclude the individual concerned
from undertaking the course in his own time, an occurrence
which is common enough.
4. The Board has always looked favourably upon applications
from trade unions to allow staff members to attend at various
internal courses and the staff member concerned has been
allowed a total of seven days paid leave since this
application was refused to attend other courses.
Claim (c) Compassionate leave
BACKGROUND:
9. 1. The Board operates a compassionate leave scheme in respect
of all officer and non officer grades and a separate scheme
for maintenance craftsmen arising from the craftsmen's
agreement 1977. Both schemes basically provide for up to
three days compassionate leave upon the death of an immediate
relative (apart from spouse) or in exceptional circumstances
on the death of a more distant relative where the deceased
lived with the applicant. Immediate relative has been defined
as father, mother, brother, father-in-law, mother-in-law
sister or child.
2. The craftsmen's agreement extended the above definition to
include uncle and aunt and grandparent. In the case of
in-laws paid compassionate leave could only be granted where
the deceased had lived with the applicant.
3. A general operative employed at the hospital applied for
two days compassionate leave (15th and 16th February, 1990) on
the sudden death of a female relative while she was on
holiday. The relationship of the deceased to the worker is
that she was the wife of his father's brother. The
application was approved by his immediate supervisor but
subsequently, in a letter dated 30th March, 1990, the Board
withdrew approval on the basis that its agreement with
maintenance staff on compassionate leave does not extend as
far as an aunt through marriage.
4. The Union claims that the female relative qualifies as an
aunt under the agreement and that the two days compassionate
leave should be approved. The Board rejects the claim on the
basis that the worker is not eligible under the conditions
covering compassionate leave in respect of his grade.
UNION'S ARGUMENTS:
10. 1. The arrangements for compassionate leave for craftsmen has
traditionally applied to the general operative grade. Under
those arrangements three days compassionate leave may be
sought on the occasion of death of a near relative. The
definition of a near relative includes "aunt" i.e. the sister
of one's father or mother, or the wife of one's uncle. In the
circumstances two day's compassionate leave should be granted
to the worker concerned.
BOARD'S ARGUMENTS:
11. 1. In accordance with the circular covering compassionate
leave in respect of his grade the worker was not eligible to
receive paid leave. The worker is a general operative and is
covered by the scheme in respect of all officer and non
officer grades. He is not covered by the craftmen's
agreement.
2. Anyone outside the immediate family of the worker's father
and mother would be regarded as an uncle-in-law or aunt-in-law
in the context of the application received. The application
cannot therefore qualify for paid compassionate leave.
RECOMMENDATION:
12. Having considered the submissions from both parties the Court
recommends as follows with respect to the 3 items claimed.
(a) Compensation for 41 hour week
The Court recommend that the Board agree to pay the 1
hour worked by the claimants in respect of the period 1st
January, 1982 to 25th September, 1989 or whatever shorter
period was involved. The payment to be calculated at
appropriate various basic hourly rates which applied
throughout the period.
(b) Paid Educational Leave
In view of the delay in determining the application for
educational leave which is not good industrial relations
practice the Court recommends in the particular
circumstances that the claimant be granted 3 days special
leave.
(c) Compassionate Leave
The Court is of the view that the Board acted in
accordance with the terms of the Departmental circular
and accordingly does not recommend concession of the
claim.
~
Signed on behalf of the Labour Court
Evelyn Owens
___________________________
5th November, 1990. Deputy Chairman
A.S./J.C.