FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MAYO COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner r-095455-ir-10/SR.
BACKGROUND:
2. The issue before the Court concerns a claim by the Union on behalf of the Worker for the restoration of working hours. The Worker was employed as a Waterworks and Sewerage Caretaker with the County Council for over 38 years. Due to the expansion of the Waterworks, the Worker's duties increased. It was agreed he would be paid an additional two hours per day at a rate of time and a half. This arrangement was in place for over 20 years. In May 2009 the County Council informed the worker that this arrangement would cease. It is Management's position that due to the economic downturn it had to reduce or eliminate, where possible, overtime across all areas. The Union is seeking a restoration of hours for its member.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 11th May, 2011, the Rights Commissioner issued his Recommendation as follows:
"I note that to concede the Claimant's claim would require the Employer to displace another employee from the position he currently holds with no guarantee of alternative work being available and I do not consider his to be reasonable. I am further satisfied that any concession of the claim would create a precedent that would undermine the existing agreement and operation of overtime working and method of compensating for same i.e.TOIL.
In all the circumstances, despite my sympathy for losses suffered by the Claimant, I cannot recommend concession of his claim for the reasons outlined above and accordingly the claim is rejected and is not upheld."
On the 7th June, 2011 the Employer appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 22nd November, 2011.
UNION'S ARGUMENTS:
3. 1 There is significant financial loss to the Worker on an ongoing basis.
2 There is no basis for the decision taken by Management. The work remains and must be covered. A General Operative has now been instructed to cover the Worker's job. This is not a General Operatives duty and this worker already had duties in place
COMPANY'S ARGUMENTS:
4. 1 Management is introducing the reduction/elimination of overtime as one of a number of measures to deal with the current financial situation. The reorganisation of work is necessary to ensure the Worker was in a position to carry out his duties within a normal working day.
2 The Worker continues to be employed as a Waterworks and Sewage Caretaker and is fully remunerated as such. If it is required for him to do overtime he is paid for this work.
DECISION:
The matter before the Court concerns an appeal by the Union on behalf of a worker of a Rights Commissioner’s Recommendation which found against his claim for the restoration of working hours withdrawn from him in October 2009 and compensation for losses sustained in the meantime.
The Council submitted that changes were made to the Appellant’s working hours as a result of its need to eliminate overtime as part of the Government’s requirement to take cost saving measures; to meet its obligation to provide for 3% saving on payroll costs and to deal with a reduction in its income and in central funding. Furthermore, the Council submitted that the general framework agreed through LANPAG (Local Authority National Partnership Advisory Group) expressly provided for overtime as an area under which savings in staff costs can be achieved in the Local Authority Sector.
The worker is employed as a Water Caretaker with the Council. He sustained a loss of 14 hours per week paid at one-and-a-half times’ the basic rate when the Council removed duties associated with his work at the Old Head Sewerage Treatment Plant and at the Louisburgh Sewerage Treatment Plant. These were duties he had been carrying out for over 20 years and were worked on a regular and rostered basis.
Having considered the submissions of both sides the Court is of the view that, in line with its obligations under LANPAG and the Public Service Agreement 2010-2014, the Council had a right to restructure work and to eliminate overtime costs. To that end the Court notes that the overtime hours worked by the Appellant were allocated to other workers as part of their normal duties. On that basis the Court does not recommend in favour of the Appellant’s claim for a restoration of the overtime hours.
However, the Court is cognisant of the very significant loss of earnings sustained by the Appellant as a result of the elimination of the overtime hours in question and accordingly recommends that he should be compensated for that loss in line with the terms of the Public Service Agreement 2010-2014 on compensation for loss of earnings.
The Court amends the Rights Commissioner’s Recommendation accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th December, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.