FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : BROTHERS OF CHARITY, WATERFORD (REPRESENTED BY HEALTH SERVICES EXECUTIVE) - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. (1) Compliance with paragraph three of Circular 138/2000 (2) Retrospection.
BACKGROUND:
2. This dispute concerns the interpretation of paragraph three of Circular 138/2000, which refers to the payment to child care workers of a sleeping-in allowance for 'a continuous period of eight hours between 8pm and 8am'. The Union disagrees with the Employer's interpretation of this circular. This 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 12th December, 2008, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 19th March, 2010, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The intent behind the Circular was to limit the period of sleep-in cover to eight hours.
2. The Employer interpreting the Circular to mean a continuous period of eight hours or more has the direct effect of extending the normal working day of the Workers.
3.The Workers should be compensated fully for all monies lost due to the Employer's incorrect interpretation of the Circular.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer's interpretation of the Circular is reasonable.
2. Concession of this claim would create huge financial difficulties for the Employer and could impact on its delivery of services.
3.Concession of this claim would inevitably lead to consequential claims across the entire intellectual disability sector.
RECOMMENDATION:
The Court was told that the circular in issue reflects the terms of an agreement between the Unions and Employers to which it relates.
The wording of the circular refers to a sleep-in as being for a period of eight hours, simpliciter. The words ‘or more’ do not appear in the agreed text and were added unilaterally by the Employer’s side. In the Court’s view the addition of these words substantially altered the import of the text as agreed. In these circumstances the Union’s interpretation of what constitutes a sleep-in is in accordance with the language used in the circular and should be accepted as correct.
The Court is, however, satisfied that some degree of flexibility is required in the application of the circular in order to meet the exigencies of the service. The Court further recommends that the parties should engage in discussions with a view to reaching agreement on the maintenance of such flexibility.
Having regard to all the circumstances of the case the Court does not recommend concession of the Union’s claim for retrospective payments on foot of this interpretation of the circular.
Signed on behalf of the Labour Court
Kevin Duffy
26th March, 2010______________________
JMcCChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.