FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CLONMEL BOROUGH COUNCIL - AND - A WORKER (REPRESENTED BY AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation IR10943/02/MR
BACKGROUND:
2. The Union, on behalf of its member who is employed as a Traffic Warden by Clonmel Borough Council, appealed to the Court, one aspect of a Rights Commissioner's Recommendation in relation to the allocation of annual leave for traffic wardens. The Union claims that the allocation of annual leave for traffic wardens was not in accordance with the provisions of the Organisation of Working Time Act, 1997. The Council rejects the claim and contends that annual leave entitlements of the Council's General Operatives and Traffic Wardens were based on a 1998 agreement and were fully in line with the Organisation of Working Time Act, 1997.
- A number of issues were referred by the Union to a Rights Commissioner for investigation and recommendation. The others issues in dispute have been resolved following the Rights Commissioner's Recommendation. His findings and recommendation in relation to the unresolved matter issued on the 25th March, 2005, as follows:
- “Findings: As regards annual leave, I am satisfied that the Council's position on this matter is the correct one and that the union should accept the Council's position as both factual and reasonable."
"Recommendation: For its part, the union should accept that the arrangements in place at the Council are not in breach of the Organisation of Working Time Act, 1997, and that any changes in those arrangements can only be achieved by negotiations between the parties on a collective and not an individual basis.”
The worker was named in the Rights Commissioner’s Recommendation.
On the 18th April, 2005, the Union appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 31st January, 2006. - “Findings: As regards annual leave, I am satisfied that the Council's position on this matter is the correct one and that the union should accept the Council's position as both factual and reasonable."
UNION'S ARGUMENTS:
3. 1. The terms and conditions of the Appellant's employment shows the annual holiday entitlement as follows:
" (a) Thirteen Consecutive Working days
(b) 3 ex-gratia days as follows:- Good Friday and two days at Christmas.
(c) A day in lieu of all Church Holidays that fall on a day other than a Sunday.
Having regard to (c) you will work on Church Holidays however, if a Church Holiday falls on your 'day-off', you will as indicated at (c) receive a day in lieu. The two days referred to at Christmas to be taken at that period and the exact days to be nominated from year to year by the Corporation."
As a result of the Joint National Council's (JNC) proposed draft programme, which was accepted by the Union's members by Ballot in August,, 2005, the Annual leave entitlements from April, 2006, will be:
23 days; plus
3 ex-gratia days; plus
Public Holidays
A total of 26 days plus the Public Holidays.
The Union contends that while this gives clarity and comfort to its member going forward, it does not help the situation in retrospection.
2. The Union is seeking that an audit and reconciliation of the Appellant's Annual Leave entitlements from 1994, to date, be carried out. This would help to satisfy the Appellant in relation to the issues that have developed over the years in relation to Annual Leave.
COUNCIL'S ARGUMENTS:
4. 1. Traffic Wardens are appointed on the General Operative Scale, Grade 3. The annual leave entitlement for traffic wardens at the time of the Rights Commissioner hearing was: 16 days flexible annual leave, 4 Church Holy Days, which can be taken at any time as annual leave days and 3 fixed annual leave days (24th and 27th December and Good Friday). This amounts to 23 days annual leave in total.
Following agreement under Benchmarking/Sustaining Progress, the leave entitlement is changing from the 1st April, 2006, to: 23 days 'annual leave and 3 fixed annual leave days(24th and 27th December and Good Friday). This amounts to 26 days' annual leave in total.
2. The Council is satisfied that the provision of annual leave for traffic wardens is in accordance with the provisions of the Organisation of Working Time Act, 1997.
DECISION:
The Union on behalf of the Appellant appealed one aspect of the Rights Commissioner’s Recommendation which related to the following claim “that the allocation of annual leave for traffic wardens was not in accordance with the provisions of the Organisation of Working Time Act, 1997”.
The Court notes that the case was brought under the Industrial Relations Act, 1969, and was taken by the Appellant and not on behalf of any other traffic wardens.
Having examined the annual leave of the Appellant for the leave years from 1997 to 2005 inclusive, the Court is satisfied that there was no breach of the 1997 Act, and in addition the Court finds that the Appellant received her full annual leave in accordance with the Borough Council’s annual leave policy (which provides for days' leave additional to those provided by statute) for each of these years. Consequently, the Court is satisfied that the Appellant has no claim for outstanding annual leave. Therefore, the Court dismisses the appeal and upholds the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
13th February 2006______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.