FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation R-108527-IR-11/GC.
BACKGROUND:
2. The case before the Court concerns the Union's appeal of Rights Commissioner's Recommendation R-108527-IR-11/GC. The dispute relates specifically to the Worker's claim that he is not receiving the correct rate for an on-call allowance applicable to him. The Union on behalf of its member contends that the Worker is incorrectly receiving a lesser allowance than that of his comparator colleagues. The Employer rejects the Union's claim arguing that the Worker is in receipt of the correct rate as is applicable to his grade. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 18th April, 2012, the Rights Commissioner issued her recommendation as follows:
"The Employer's letter of 3rd June, 2005 enclosing details of the proposed pay details shows the Claimant was to be paid his on-call allowance based on 2 hours of basic pay. I note the evidence that staff in Clonmel are on Craft rates, therefore the Claimant's comparison is not valid. I find the on-call allowance is based on 2 hours pay for the Claimant, and to alter this would only give rise to further anomalies and repercussive claims for the Employer. I do not uphold the Claimant's claim".
On the 29th May, 2012 the Union on behalf of its member appealed the Rights Commissioner's 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 6th November, 2012.
UNION'S ARGUMENTS:
3. 1. The Union contends that the Worker is not receiving the correct rate in terms of the on-call allowance applicable to him.
2. The Union maintains that the Employer is in breach of the terms of an agreement which states that the Worker is entitled to a higher rate of on-call allowance in accordance with the higher rate which is paid to Craft workers based in Clonmel.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker is not a Craft worker and as such is not entitled to the higher rate of on-call allowance.
2. Any previous anomalies have now been corrected and all arrears have been paid to the Worker.
3. Concession of the Union's claim could potentially lead to knock-on claims for the Employer.
DECISION:
The matter before the Court concerns the Union’s appeal on behalf of a worker of a Rights Commissioner’s Recommendation, which found against his claim that the employer was in breach of an agreement reached in 2005 when it incorrectly applied the terms of the agreement in relation to on-call payments.
The Union submitted that the 2005 agreement provided that the Claimant was entitled to two hours on-call payment per week calculated at the Craftsman’s hourly rate in Clonmel and contended that initially at least his on-call payment was in line with the Craftsmen’s on-call payment but had diverged at a later stage.
HSE submitted that the agreement provided for payment to the Claimant of two hours on-call payment at his own hourly rate - Band 3 rate and stated that this payment has been adjusted in line with general pay adjustments since.
The Court note that the terms of the agreement which was drawn up to cover compensation payments due to changes in roster arrangements, do not specify that he will he paid two hours on-call payment per week, it states, inter alia :-
- “I enclose details of your present and proposed pay details which includes payment of an on-call allowance for your on-call commitment in St. Patrick’s Hospital in responding to Technical Services calls out of hours. ………Implicit in this proposal is a commitment to apply any revisions to the on-call rates which pertain in the Clonmel services to you in respect of the out of hours service in Cashel.”
The Court notes that while on-call payments to Craftsmen in Clonmel were revised in line with general pay adjustments over the years, a new structure for on-call payments was introduced in 2007 in conjunction with the TEEU for Craftsmen in Clonmel. This new structure introduced an “on-call pot of money” system divided by the number of Craftsmen on-call, accordingly the amount of on-call payment to Craftsmen varied depending on the number of Craftsmen on-call at any time.
Having considered the submission of both sides the Court is satisfied that the 2005 agreement was honoured by the employer, the Claimant was paid an on-call payment as specified in the details attached to the agreement i.e. he was paid an on-call allowance of €26.77 per week, revised since in line with revisions to on-call rates which applied to Craftsmen in Clonmel. The fact that the methodology for on-call payments for Craftsmen in Clonmel changed in 2007 did not alter that agreement.
Therefore, the Court upholds the Rights Commissioner’s Recommendation and rejects the appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th November 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.