FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE WEST - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Access to overtime.
BACKGROUND:
2. This dispute concerns a claim for payment of overtime allegedly due on foot of a collective agreement concluded between the parties in 2005. 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 15th February, 2010, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 27th September, 2011.
UNION'S ARGUMENTS:
3 1 An agreement was reached between the parties.
2 The Workers fully honoured their side of the agreement.
3 The Employer has failed to deal with the Workers' grievance in a timely manner.
EMPLOYER'S ARGUMENTS:
4 1 The Employer has correctly applied the agreement.
2Concession of this cost-increasing claim is precluded under the terms of the Croke Park Agreement.
3.Concession of this claim would lead to similar claims nationally across the Public Service.
RECOMMENDATION:
This claim is expressed to relate to payments allegedly due to two workers, in respect to overtime, on foot of a collective agreement concluded between the parties in 2005. However, both parties confirmed that the real issue before the Court relates to the interpretation of that Collective agreement. The agreement in question has since expired.
In the relevant part the agreement provides: -
- "The board can confirm that all operational staff will be given access to overtime to a level not less than 9 hours per week.
Staff side accepts that this cannot be viewed as 'institutional overtime' and should a change be necessary at review stage no buy out will be made"
The Union contends that the import of this clause is that those covered by the agreement are entitled to nine hours overtime in every week. The employer's interpretation is that affected staff were to be provided with an average of 9 hours overtime per week over a six week roster period.
It is agreed between the parties that from its inception the agreement was operated in line with the interpretation contended for by the HSE.
In interpreting a collective agreement the Court's role is to ascertain and give effect to the intention of the parties. That intention can normally be gleaned from the language used in the agreement and from the manner in which the agreement has been applied by the parties over time. In this case the Court is satisfied that the plain meaning of the language used in the relevant clause of the agreement supports the position taken by the union. But that is not a conclusive consideration. Since its inception the agreement was operated in the manner contended for by the HSE and, apart from the two individuals who are associated with this claim, no issue was taken with the way in which it was applied.
For these reasons the court believes that there is cogency in the position of both parties. However, the agreement is now expired and, given the passage of time since its expiry, the court cannot see what practical redress the workers concerned could now have even if their interpretation of the agreement were to be accepted.
In all the circumstances the Court has concluded that there is an insufficient basis upon which it could recommend concession of the Union's claim.
Signed on behalf of the Labour Court
Kevin Duffy
17th October, 2011______________________
JMcCChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.