FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : BROTHERS OF CHARITY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. 1. Unsocial hours, 2. Night allowance, 3. Additional annual leave.
BACKGROUND:
2. The issues in dispute before the Court relates to the non-application of nationally agreed rates for 1. Unsocial hours, 2. Night allowances and 3. Increased annual leave.
- It was agreed between the parties at national level and the Health Services Authority that with effect from 5th December, 1999 that an unsocial hours rate of time plus one sixth would be paid to care workers who worked between the hours of 6.00 pm and 8.00 pm. It was also agreed nationally with effect from January 1998 that a night allowance of time plus a quarter would be paid to care workers who worked between the hours of 8.00 pm to 8 am.
Neither of these allowances were applied to Brothers of Charity Services Lota, Cork due to lack of funding. The entitlement of approximately 40 care workers to the allowances is not in dispute.
In December 2001 annual leave entitlements for childcare workers and childcare leaders increased.
The Union contend that its members who were paid at a flat rate of pay for the hours in question are seeking the full implementation and retrospection of the allowances referred to above for its members.
The Brothers of Charity Services Lota do not dispute the increased entitlements, but they were not applied to staff due to lack of funding
The Union is requesting the full application of the unsocial hours and night allowances plus retrospection of both allowances and the retrospective element of the annual leave.
The dispute could not be resolved at local level and 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 14th July, 2006 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 28th February, 2007.
UNION'S ARGUMENTS:
3.1 Since the early 1990's the Union have endeavoured to have full implementation of all entitlements on behalf of its members in the Childcare Workers, Childcare Leader Grades.
2. Members have been frustrated by the length of time that it has taken for these entitlements to be implemented. To date both the Night Duty Allowance and the Unsocial Hours premiums have not been paid by the Brothers of Charity despite the organisation advising the Union that they are not in dispute regarding these entitlements. Accordingly the Union contends that as there is no dispute it is the obligation of the employer to provide these entitlements to its staff members.
MANAGEMENT'S ARGUMENTS:
4.1 Management confirms that on two of these issues there is no disagreement on the question of principle. Funding is central to both cases and this is dependant on external factors outside the control of the Brothers of Charity.
2. Management contends that there cannot be a conclusion on either of these matters until funding agencies allocate the necessary finance to enable the Brothers of Charity to implement the remaining elements of both of the agreements that were negotiated at national level.
3. In relation to the special arrangement on the night duty allowance (while this also has funding implications) Management are asking the Court to endorse Management proposal in relation to retrospection. The introduction of an intermediate allowance and the installation in the future of a full night duty allowance in place of the intermediate allowance that would continue until the Lota Restructuring Plan was implemented.
RECOMMENDATION:
The dispute before the Court concerns three claims submitted by the Union on behalf of Childcare Workers and Childcare Leaders for (i) payment of night duty allowance, (ii) unsocial hours allowance and (iii) outstanding annual leave entitlements.
Having considered the views of the parties expressed in their oral and written submissions, the Court recommends as follows:-
Night Duty Allowance
The Court recommends that the terms of a proposal put forward by Management at the Labour Court hearing, to resolve the claim for outstanding night duty allowance payments should be accepted, pending agreement and implementation of a new structural plan.
The Court recommends that the parties should enter into immediate discussions on the new structural plans and the Court should be advised of its progress, by no later than 1st July, 2007.
Unsocial Hours Allowance
The Court recommends that Management should pay the unsocial hours allowance of T + 1/6th for hours worked between 6pm and 8pm when worked as part of an 8 hour shift, backdated to date of the Department of Health and Children Circular 28/2004, i.e. 25th August 2004.
Outstanding Annual Leave Entitlements
In 2006, annual leave entitlements were increased in line with the HSEA agreement of 13th December 2001, therefore, the Union's claim relates to the outstanding element of retrospection.
The Court recommends that the outstanding annual leave should be granted to the workers concerned and should be phased in over a period of five years. The Court recommends that arrangements should be put in place to allow staff to avail of the leave over an agreed period of five years.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th May, 2007______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.