FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : NATIONAL CONCERT HALL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - PUBLIC SERVICE EXECUTIVE UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Shift Allowance.
BACKGROUND:
2. The National Concert Hall (NCH) is a registered limited company funded by the Department of Arts, Sports and Tourism.
On 22nd May 2008 the Union wrote to the NCH advising that its members were seeking the application of the civil service shift premium of a sixth (16%) of the salary in addition to their basic pay. There are four individuals concerned in this claim and they work a two-shift cycle 9am -5pm and 3pm - 11pm. The NCH rejected the claim on the basis that the salary structures adequately compensate the work pattern that is not a full two-shift cycle.
In 1997/1998 the NCH reviewed all salaries following a claim by SIPTU under clause 2(iii) of the Programme for Competitiveness at Work. This review resulted in large percentage increases in basic salary for three of the positions at issue and became effective from October 1998. The role of House Manager was subject to a separate increase in salary. The NCH understood that the increases in salary recognised the unusual hours of the NCH and that evening work would be part of the regular work life in the NCH.
The Workers covered by the claim are Public Servants and are covered by the Public Service Agreement 2010-2014.
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 20th April, 2010 in accordance with Section 26(1) of the Industrial Relations Act 1990. A Labour Court hearing took place on the 29th October, 2010.
UNION'S ARGUMENTS:
3. 1. The Union contends that its members in the NCH are linked to Civil Service grades for the purposes of pay and conditions and are therefore entitled to the Civil Service premium for shift work.
2. The Union maintains that its members work a restricted two shift pattern and that the premium for such a shift pattern is one sixth of salary (16%) in addition to basic pay.
3. An agreement between the TEEU and the NCH provided for an increase of 13% in full and final settlement of their claim for shift rate. The PSEU Union's members work the same shift pattern as the electricians and therefore should be paid a shift allowance.
MANAGEMENT'S ARGUMENTS:
4. 1. Management maintains that the particular grades (and their associated pay scales) were specifically created for the NCH as no existing public service grade was felt equivalent and the bespoke pay scales already encompass an appropriate element of compensation for the variable working hours at the NCH.
2. The contract for each employee specifically states a set salary. Each employee agreed to work these variable hours as outlined in the contract without a shift premium.
3. The agreement with the TEEU was a productivity deal and the reference to "shift" was included in the agreement in order to avoid the employees claiming for a shift premium after the deal was completed. The productivity measures achieved in the agreement with the TEEU resulted in a cost-neutral outcome for the NCH.
RECOMMENDATION:
The Court has considered the submissions of the parties to this dispute made during the course of the hearing and the supplemental submissions made following the hearing on the implications of the Public Service Agreement 2010-2014.
With regard to the merits of the Union's claim, it is clear that those associated with the claim have been working the same shift pattern over many years and they have never been paid a shift premium. This suggests that there is merit in the Employer's contention that the salary applicable to the grade reflects the requirements of their attendance patterns and that this was accepted, at least tacitly, over time.
The Court has also considered whether or not this claim is maintainable having regard to the terms of the Public Service Agreement 2010-2014. Clause 1.27 of that Agreement precludes trade unions from making or processing cost-increasing claims during the currency of the Agreement. The claim before the Court is cost-increasing and its reference to the Court amounts toprocessingthe claim.
The Court is aware of an understanding between the parties to the Agreement that allows for the processing of minor claims. It is noted that the Union believes that the present claim is minor in nature and comes within that exception to the general prohibition of cost-increasing claims. The Court cannot accept that the present claim can be properly regarded as minor either in terms of its value to the individuals concerned or to its cost, including its potential cost, to the Employer. Accordingly, the Court does not accept that the claim can be brought within the exception relied upon.
For all of these reasons the Court does not recommend concession of the Union's claim.
Signed on behalf of the Labour Court
Kevin Duffy
26th November, 2010______________________
MG.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.