FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - 5 NAMED INDIVIDUALS (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal Of Rights Commissioner's Recommendation R-099290/R099292/R099302/R099307/R099312-IR-10/JOC.
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Union on behalf of five of its members currently employed in Clerical and Administrative roles in the Accident and Emergency Department of Waterford Regional Hospital. The dispute relates specifically to the Union's claim for additional remuneration in situations where the Claimants are not in a position to avail of their mandatory break times due to the ad-hoc, busy nature of the Accident and Emergency Department. The Employer rejects the Union's claim and agreement could not be reached. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 3rd February, 2012 the Rights Commissioner issued his recommendation as follows:
"I cannot support the Claimant's request for additional payment and I uphold the Respondent's position on the claim".
On the 13th February, 2012 the Union on behalf of its members 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 14th February, 2013.
UNION'S ARGUMENTS:
3. 1. The Claimants are entitled to compensatory rest periods and additional remuneration for untaken breaks.
2. There is no provision for the Claimants to avail of breaks despite a break period being factored into rostered shift times.
3. The Union on behalf of its members is seeking retrospective compensation and an assurance from the Employer that the Claimants will be in a position to avail of mandatory break periods going forward.
EMPLOYER'S ARGUMENTS:
4. 1. The Claimants are afforded a 3.5 hour compensatory rest period whether break times are availed of or not.
2. The Claimants are not entitled to monetary compensation for breaks that have not been availed of.
3. The Employer is bound by the terms of thePublic Service Agreement 2010 – 2014and is not in a position to concede the Union's claim.
DECISION:
The practice giving rise to this dispute is one of long standing. The Court notes that the Union’s claim is for the payment of additional remuneration in respect of the untaken breaks or additional time off in lieu. In either case concession of this claim would involve additional costs to the HSE.
In these circumstances the claim is cost-increasing in nature and as such it is precluded by Clause 1.27 of the Public Service Agreement 2010 – 2014. For that reason the Court cannot recommend that the claim be conceded.
Signed on behalf of the Labour Court
Kevin Duffy
6th March 2013______________________
SCChairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.