FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE SOUTHERN AREA - AND - A WORKER (REPRESENTED BY AMICUS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation IR 13260/03/MR.
BACKGROUND:
2. The Board decided, based on a professional evaluation of the needs of the service, that it was necessary to have an electrician on -call and this person receives a call-out allowance. Similarly the Board decided that it was not necessary to have a plumber on-call.
The worker concerned, a plumber, left his mobile phone number with the Hospital and provided a call-out service two to three times a week. If he was not available a contractor was used. Management did not pay the worker a call-out allowance as they did not require him to provide this service. He was however paid appropriately for the work he did when called out.
The Union's claim is for the payment of a stand-by allowance and telephone allowance to the worker concerned for the service he is providing. Management reject the claim as they have not requested the worker to provide the service.
The matter was referred to a Rights Commissioner for investigation and recommendation. His recommendation issued as follows:
"I therefore recommend that the Board should clarify the on-call situation as above, and, as an exceptional measure, should agree to pay the worker a once-off ex gratia lump sum of €100, and that the worker and AMICUS should accept this payment in full and final settlement of this claim."
(The worker was named in the Rights Commissioner's recommendation).
The Union appealed the recommendation to the Labour Court on the 20th May, 2004, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 9th February, 2005.
UNION'S ARGUMENTS:
3. 1. The worker provided a dedicated call out cover without the stand by allowance or phone allowance for many years.
2. The worker's home and mobile phone numbers were available to staff and also put on noticeboards.
MANAGEMENT'S ARGUMENTS:
4. 1. Management had decided, based on a professional evaluation of the needs of the service, that it was not necessary to have a plumber on-call.
2. There was no onus for the worker to be on-call. If the worker was contacted and responded he was offered the appropriate work and paid the appropriate rate.
DECISION:
Having considered the oral and written submissions of both parties the Court is satisfied that while the claimant responded to calls outside of hours and was paid the applicable call out rate, he was not required to be on stand by and accordingly was not entitled to the standby by rate.
The Court upholds the Rights Commissioners recommendation and disallows the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
24th February, 2005______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.