FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : KILKENNY COUNTY COUNCIL - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. 1. Bank Holiday Leave, 2. Clinic Day, 3. Compassionate Leave.
BACKGROUND:
2. The dispute before the Court concerns a claim by the Union on behalf of its members employed as General Operatives and Related Grades against Kilkenny County Council concerning Bank Holiday Leave, Clinic Days and Compassionate Leave.
The Council is seeking to regularise what it considers to be anomalies regarding leave. The Union does not accept these as anomalies but rather well established custom and practice.
In relation to Compassionate Leave a letter from the Personnel Officer in 1991 confirmed up to three days compassionate leave for near relatives including aunts and uncles. With regard to Sick Leave it is the established practice to have what is known
as "Clinic Days" to allow members to attend Doctor's appointments without it affecting either their certified or uncertified sick leave entitlements. During a period of sick leave statutory Public Holiday entitlements are deferred and the member is compensated for these on his/her return to work.
In December 2004 the Council issued a memorandum to all its area offices advising on the application of bank holiday entitlements in the event of an employee being out sick on the bank holiday. This memorandum is, it is submitted by the Council in accordance with the Organisation of Working Time Act, 1997. The memorandum also dealt with the issue of "Clinic Days". There is no national agreement for "Clinic Days" and in order to ensure conformity with national standards the Council wish to "phase out" this anomaly.
The Union met with the then H.R. Manager to discuss the issues in April, 2005. No progress was made.
The dispute was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 21st September, 2005, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 13th October, 2006, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The Union maintain that the Council are seeking to undermine members' entitlements in relation to Public Holiday Leave, Clinic Days and Compassionate Leave without prior consultation or agreement with the Union or its members.
2. In relation to "Clinic Day" and Compassionate Leave, both are long-standing established practices and neither has been abused by the Union's members and therefore, in good faith should remain.
MANAGEMENT'S ARGUMENTS:
4. 1. The entitlements of an employee, when out sick on a public holiday, are governed by Section 2(1) of the Organisation of Working Time Act, 1997. The Act provides for the employer to decide, within the expressed options, how it shall administer the Act.
2. "Clinic Days" were introduced prior to the introduction of the nationally agreed sick pay scheme. These days should have been subsumed into the nationally agreed sick pay scheme but was overlooked by the Council at the time.
3. Compassionate leave is granted to all staff in local authorities in line with Circular Letter L.A. (P) 18/80. The Council has no authority to deviate from the provisions of this Circular. The Circular does allow for discretion where the circumstances require it.
4. The Council, in its memorandum in December 2004, attempted to bring clarity and uniformity to the application of a number of entitlements which staff enjoy. The Council's intention was to ensure that the benefits and entitlements are applied fairly and consistently to all staff.
RECOMMENDATION:
The Court notes that the arrangements at issue in this case have been in operation within Kilkenny County Council for upwards of 20 years. During this period they have been consistently applied to the categories of staff associated with this claim. On this account the Court is of the opinion that they have become incorporated in the conditions of employment of the staff concerned by custom and practice.
The Court nonetheless accepts that cogent arguments have been advanced in favour of a uniform application of the nationally agreed pay scheme for Local Authorities. However, the implementation of this objective must take account of more favourable conditions established in individual Local Authorities.
Having regard to all the circumstances of the case the Court recommends that the issues before it be resolved on the following basis:-
Clinic Days and Compassionate Leave.
The additional benefits provided by the Council in respect of both clinic days and compassionate leave should be retained by existing staff on a personal to holder basis. All staff recruited after the date of this Recommendation should be employed on the basis that the arrangements concerning attendance at medical appointments, and the application of the compassionate leave scheme will be as set out in the Councils circular of 23rd December 2004.
Public Holidays.
Both sides made submissions on the construction of S. 21 (1) of the Organisation of Working Time Act, 1997 in so far as it affects the issues arising in this aspect of the dispute. The dispute is being investigated by the Court pursuant to S.26(1) of the Industrial Relations Act 1990. In these circumstances it would be inappropriate for the Court to interpret a provision of another statute and nothing in this Recommendation should be construed as providing such an interpretation. Rather, the Court's approach to this issue is based on what it regards as fair and reasonable in all the circumstances of the case.
It is noted that up to December 2004 the Council paid employees who were absent from work due to illness on a public holiday under the sick pay scheme. The employees were then allowed a day off with pay on his or her return to work. This change was introduced unilaterally by the Council without consultation or agreement with the Union.
There is no evidence before the Court of agreement having been reached at national level on how public holidays should be treated in this respect under the nationally agreed sick pay scheme. The Court does note the content of the circular sent to all Local Authorities by the LGMSB following the Court's Determination inThermo King and Kenny(Determination 0611). It is not clear however if the import of that circular was agreed with the relevant Trade Unions nationally. In the Court's view such agreement should be obtained before individual Local Authorities could reasonably change prior arrangements which staff consider more favourable.
In the Court's view the established practice which applied prior to this change now in dispute should be restored until agreement is reached nationally on the alternative arrangement proposed.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Duffy
27th October, 2005______________________
MG.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.