FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DUBLIN CITY COUNCIL - AND - SIPTU & IMPACT DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Reassignment of 15 staff back to core duties with a subsequent loss of earnings.
BACKGROUND:
2. This dispute concerns the loss of earnings suffered when the Workers were reassigned to their substantive role. 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 November, 2013, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 6th December, 2013.
UNIONS' ARGUMENTS:
3 1 The Employer's decision has caused the Workers significant financial loss.
2 The Employer has a responsibility to make every reasonable effort to prevent the Workers suffering such significant financial loss.
3 The allowances paid to the Workers should be restored.
EMPLOYER'S ARGUMENTS:
4 1 The Employer has been faced with unprecedented financial challenges since 2008.
2 The payment of a site allowance is not earnings so no compensation is payable.
3. The payment of an acting allowance ceases when an employee reverts to a substantive role.
RECOMMENDATION:
The issue before the Court concerns the Unions’ claim regarding the reassignment of fifteen staff from the National Transport Authority Design Section (NTADS) back to their substantive roles in Dublin City Council. The Unions sought in the first instance a continuation of their assignment to the NTADS or, in any event, compensation for the losses sustained.
The Engineers and Technicians involved in this case were required to return to their substantive roles as and from 1stOctober 2013 and consequently lost site allowances and acting allowances.
The assignments from the City Council to the NTASD were entered into on a temporary basis and the decision to move the Engineers and Technicians back was made due to the critical staffing requirements of the City Council which emerged following the Moratorium on Recruitment and Promotions in the Public Service 2009.
The Unions involved claimed that the work of the NTADS continues to be required and the Claimants’ assignment contracts stated that the duration of the work was contingent on the availability of funding for the projects involved. They submitted that such work continues and their members had an expectation of continuing to work with the NTASD. Furthermore, the Unions submitted that the members involved had worked on these projects for between six and eleven years and that their losses were between €5,800 and €27,000 per annum.
Prior to the set-up of the NTADS, Dublin City Council established the Quality Bus Network Project Office which was staffed by its own employees on temporary contracts, including the Claimants. Since 2011 Management stated that the Claimants were aware that the assignments were temporary and to this end their contracts were renewed on a three-monthly basis. Therefore, it contended that the Claimants were fully aware that the contracts would come to an end and they would be returned to their substantive roles in the City Council.
In relation to the Unions’ claim for compensation, Management stated that site allowances were paid in respect of travel and subsistence, they were not earnings and therefore were not appropriate for compensation. It also held that the removal of an acting allowance where a project has ceased and an employee reverts to their substantive role is the established practice in the City Council and the norm in the wider public service.
Having considered the submissions of both sides the Court accepts that where the City Council has a critical need for staff it was appropriate in the circumstances to recall its own employees from project work and accordingly keeping the Claimants informed of matters was an important feature of such recall. In all the circumstances facing the City Council, the Court cannot uphold the Unions’ claim to continue the Claimants in their temporary assignment with the NTADS.
In relation to the Unions’ alternative claim for compensation, the Court is aware of the fact that the Claimants have occupied these assignments for lengthy periods of time and that the loss of earnings is substantial. However, the Court also notes that the circumstances pertaining in this case do not come within the terms for compensation for loss of earnings within the Public Sector Agreement. Accordingly, the Court does not recommend compensation for the loss of site allowances and/or acting allowances in these circumstances.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
18th December, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.