FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : CENTRAL & REGIONAL FISHERIES BOARDS - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Claim for the application of the 1% Lump Sum under the Adjustment to the Programme For Prosperity and Fairness( P.P.F.) to the Unsocial Hours Allowance.
BACKGROUND:
2. The dispute concerns approximately 195 field staff employed as Inspectors, Assistant Inspectors and Fishery Officers. They are paid an Unsocial Hours Allowance in respect of their availability for some work outside normal working hours. The Unsocial Hours Allowance (U.H.A.) ranges from €4,855 to €5,059. The Boards rejected the Union's claim. The dispute was referred to the Labour Relations Commission. A conciliation conference was held on in September, 2002. Agreement was not reached. The dispute was referred to the Labour Court by the Labour Relations Commission on the 19th September, 2002. A Court hearing was held on the 15th January, 2003.
UNION'S ARGUMENTS:
3. 1.The claimants receive the U.H.A. in return for their availability over 24 hours per day 7 days per week. It does not vary in relation to the number of unsocial hours actually worked.
2. The U.H.A. is, to all intents and purposes, an integral part of the basic pay.
3.There are precedents in the Public Service where certain grades are paid on their basic in return for their commitment to be available to work outside standard hours. Certain teaching grades are in receipt of a responsibility allowance which is recognised as part of their basic pay. The 1% was calculated on the basis of including allowances, in employments such as Health Board areas and in the Local Authorities.
4.In LCR 17171 the Court stated that the 1% should be calculated on pay on which overtime is calculated. In the Fisheries Boards hours worked over the standard 39 are compensated for by time off in lieu on a straight hour for hour basis.
5. The cost of concession of the claim is minimal.
BOARDS' ARGUMENTS:
4. 1.The Adjustment to the P.P.F. pay provisions is clear and refers to basic pay. The U.H.A. is not defined as basic pay in the 1984 Staff Scheme or any subsequent agreement.
2.The Union's original claim was for overtime for unsocial hours (LCR 5500 refers). The Court recommended overtime payments for unsocial hours. However, an allowance applicable to the three field grades was negotiated and agreed by the parties as an alternative to the terms recommended in LCR 5500.
3.In a further agreement in 1992 provision was made for adjusting the U.H.A. The allowance was to be adjusted pro rata by reference to all basic pay increases in the future. In view of this agreement to review the allowance with all basic pay increases, the U.H.A. itself cannot be defined as basic pay.
4.The creation of the U.H.A .was in lieu of overtime payments. Overtime payments as an addition to basic pay do not attract the application of the 1% lump sum.
5.In LCR 17171 in which the definition of basic pay was tested, the Court stated "Normallythe test used to ascertain 'basic pay'where there is any confusion on the matteris" that which overtime is calculated upon". In taking account of this interpretation the U.H.A. payment would not attract a 1% amount.
6. LCR 17328, related to a claim by the Union that the 1% lump sum should apply to consolidated earnings, basic pay and service charge earnings. The Court recommended ".........the lump sum in question should be calculated on basic pay and not in the manner claimed by the Union".
7.The claim is cost increasing and precluded under the P.P.F.
8.Concession of the claim would lead to a myriad of similar claims throughout the Public Service.
RECOMMENDATION:
The issue in this case is whether the unsocial hours allowance (U.H.A.) should attract the 1% applicable under the lump sum payment clause of the P.P.F.
The management position is that as the U.H.A. is an additional allowance, paid for unsocial hours commitment, it cannot be defined as basic pay.
The union case is that this allowance as it applies is an integral part of the basic rate.
The Court has considered the written and oral submissions made by the parties. Taking into account the background to this allowance, it was agreed in response to a claim for overtime payment for unsociable hours working, and the fact that it appears separately as an allowance on pay slips, the Court is satisfied that it does not qualify for the 1% lump sum payment agreed in the Programme for Prosperity and Fairness.
Signed on behalf of the Labour Court
Finbarr Flood
22nd January, 2003______________________
TODChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.