FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE WEST - AND - TECHNICAL, ENGINEERING AND ELECTRICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Withdrawl of Subsistence Allowance - Mayo Maintenance
BACKGROUND:
2. This case concerns a dispute between the Health Service Executive (HSE) West and the Technical Engineering and Electrical Union (TEEU) in relation to the withdrawl of subsistence allowance for maintenance personnel who provide an on-call service at Mayo General Hospital and other locations in Co. Mayo.
The Union's position is that an agreement concluded between the parties in 1999 provided for the application of a subsistence payment that would be paid while attending call-outs in addition to the agreed travel allowance. It accepts the re-negotiation of the Agreement in 2006 but the issue of the withdrawl of the subsistence payment did not form part of the discussions on the new agreement.
Management's position is that when the 1999 Agreement was re-negotiated in 2006, it provided for the payment of the subsistence allowance only in circumstances where call-outs were in excess of five hours. This provision, although part of the 2006 Agreement, was not implemented until 2008 and the withdrawl of this element of the agreement at that time has caused the current dispute between the parties.
The dispute was not 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 matter was referred to the Labour Court on 7th January, 2009 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 21st October, 2009, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3 1 The payment of the subsistence element of the on-call allowances has been unilaterally withdrawn by management. This issue was never discussed as part of the 2006 Agreement and should therefore be retrospectively re-instated.
COMPANY'S ARGUMENTS:
4 1 The Agreement was re-negotiated in 2006 to bring on-call allowances into line with arrangements that applied generally in such circumstances.
2 The new agreement specifically stated that the terms and conditions of the Travel and Subsistence scheme would be strictly adhered to. This was clearly understood by the Union and was not raised as an issue at the time.
RECOMMENDATION:
The matter before the Court concerns a claim by TEEU concerning changes to the call-out payment arrangements for maintenance craftsmen. An agreement made in 1999 (with retrospective effect to 1996) provided for a subsistence allowance of €13.71 (2009 rate) in addition to a travel allowance.
A new agreement entered into in 2006, stated that:
- “The Terms & Conditions of the Travel & Subsistence Scheme through the HSE will be strictly adhered to.”
The Union objected and stated that there had been no negotiations between the parties on this significant change to their call-out terms. It held that the 1999 Agreement worked in tandem with the 2006 Agreement and consequently the 1999 terms relating to travel and subsistence still applied.
Having considered all aspect of the case, the Court accepts that the 2006 Agreement is the appropriate agreement, accepted by both parties, relating to Standby/On-call & Call Out Agreement for Maintenance Staff. However, the Court accepts the Union’s arguments that it was unaware of the significant changes this agreement introduced to the payment of subsistence allowance and accepts that this issue was not openly discussed as part of those negotiations.
Therefore, the Court recommends that in all the circumstances of this case that the 1999 subsistence allowance payment should be bought out for the claimants concerned by the payment of a once off lump sum and replaced with the new 2006 arrangements. Therefore, each claimant involved should receive an award of compensation of twice the loss of subsistence, which would have incurred, calculated over the 12-month period from 1st October 2008 to 30th September 2009. This recommended lump sum payment should be paid to the claimants concerned before the end of December 2009.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th November 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.