FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WESTERN HEALTH BOARD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR392/99/MR concerning rate of pay of worker when acting as relief van driver.
BACKGROUND:
2. The worker concerned commenced employment at St. Brigid's Hospital, Ballinasloe in 1979 as a general operative in the maintenance department. Since 1980 he has worked in the laundry division and operates as relief van driver on occasions when the regular van driver is on leave.
The dispute concerns the Union's claim on behalf of the worker that he should be paid 90% of the craft rate when acting as relief van driver. It argues that staff employed in the laundry division are the only staff in the hospital who do not qualify for 90% of the craft rate.
The Board's position is that it has offered to pay the appropriate van driver rate to the worker when he performs such duties and that this is in line with a recent agreement with the regular driver which included a lump sum to cover retrospection. Local level discussions failed to resolve the matter and the dispute was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
"Based on the evidence before me, I am satisfied that the Board's position is a reasonable one and that, in the circumstances, the worker and SIPTU should accept the offer of the Van Driver's Allowance. At the same time, the Board should confirm that it is also prepared to pay an appropriate lump sum to the worker.
Accordingly, I recommend that the claim fails and that the Board and SIPTU should agree to resolve the dispute as above."
(The worker was named in the recommendation) .
The Rights Commissioner's recommendation was appealed by the Union to the Labour Court on the 26th of November, 1999 under Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal in Galway on the 1st of June, 2000, the first date suitable to the parties. Following the hearing the Board confirmed to the Court its offer to transfer the worker back to the maintenance department where he would be in a position to carry out duties that would qualify for 90% of the craft rate.
UNION'S ARGUMENTS:
3. 1. Initially Management agreed to pay the worker 90% of the craft rate backdated to the 17th of April, 1997.
2. It is the Union's view that the reason Management changed its decision to pay the worker 90% of the craft rate is due to a personality clash between the worker and the Assistant Hospital Administrator. As a result the Assistant Hospital Administrator has:-
(i) Cancelled the worker's annual leave despite the fact that it had been booked nine months in advance.
(ii) Referred him for an independent medical examination when he was absent on sick leave for three days.
(iii) Reduced his compassionate leave following the death of his father.
3. The Board's statement that it cannot pay a substitute driver a higher rate than that paid to the regular driver is rejected by the Union. There is already a system in place at the hospital where both general operatives and mates perform driver duties in an acting capacity and all qualify for 90% of the craft rate.
4. The worker previously worked in the maintenance department and transferred to the laundry at the request of Management. In the circumstances, the Union's claim for payment of 90% of the craft rate is justified.
HEALTH BOARD'S ARGUMENTS:
4. 1. The Board's position in relation to certain points put forward by the worker is:-
(i) Kitchen: The driver involved in the delivery service comes from the maintenance staff complement, and as such is compensated for his loss of opportunity to work on tasks which attract the payment of the 90% rate for extra skilled duties. (This agreement was negotiated in the early 1990's).
(ii) Farmyard: These staff are on a rate personalised to them following lengthy negotiations as part of the farm closure and for changes and flexibility in work practices, which was the subject of a Union/Health Board Agreement.
(iii) Minibuses: The minibus driver is paid as a driver as per the Department of Health salary scale for drivers. If a mate from the maintenance department covers as a driver he is paid at the 90% rate because this is the rate he would be paid if carrying out craft type duties on the maintenance workforce. In other words he is paid at a rate comparable to that paid if he were to remain at maintenance work.
(iv) Laundry: The Laundry has never been included in the 90% agreement, as this agreement only applies to staff employed in the maintenance area.
2. The Board has offered the worker the option to transfer back to the maintenance department where he would be in a position to carry out duties that qualify for the 90% payments.
3. The Board cannot approve a higher rate of pay to a substitute. This would result in the person who normally does the work getting a lesser rate of pay. The Board requests that the Rights Commissioner's recommendation is upheld.
DECISION:
The Court has taken into consideration all aspects of this appeal of the Rights Commissioner's recommendation.
The Court is of the view that it would not be reasonable for it to recommend a rate of pay for the relief driver which would be greater than that paid to the regular driver. As a means of resolving this dispute, the Court recommends acceptance of one of the offers made by the Board:-
(1) To pay an allowance of Van Driver rate to the appellant when he is engaged in driving duties, plus a lump sum payment to cover arrears,
or
(2) To transfer to the maintenance department where he will be given the same opportunity as others in that department to earn 90% of the craft rate.The matter of unfair treatment of this worker was raised; the Court is of the view that any such issues should be investigated separately.
The Court upholds and amends the Rights Commissioner's recommendation accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
30 June, 2000______________________
F.B./S.H.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.