FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE MIDLANDS AREA MENTAL HEALTH SERVICES - AND - SIPTU & PNA DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Overtime payments.
BACKGROUND:
2. This dispute arose from the Unions' claim that the Employer paid a flat rate for overtime in contravention of a national agreement. 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 26th July, 2013, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 9th October, 2013.
UNIONS' ARGUMENTS:
3 1 There is a national agreement on overtime in place.
2 There are no local agreements in place which allow for unilateral changes to the Workers' terms and conditions of employment.
3 The Workers should be compensated in full for any losses incurred.
EMPLOYER'S ARGUMENTS:
4 1 The Employer has always honoured national agreements in relation to pay.
2 The Employer was asked to allow the Workers to work overtime at flat rate rather than use agency staff.
3. Concession of this claim would cause considerable financial difficulties for the Employer.
RECOMMENDATION:
The issue before the Court concerns the rate paid for overtime working in the Mental Health Services in two HSE Midland Regions. The Unions submitted that the HSE was in breach of the Terms and Conditions of Employment Agreement 2009 when it decided to pay flat rate to employees who worked overtime in the period from 12thAugust 2012 until 1stJuly 2013. The Unions sought retrospective payment of the appropriate overtime rates to those who had worked overtime at flat rates for the period in question.
HSE Management explained that this situation arose following a Directive from the HSE Head Office restricting the use of overtime and a direction to engage agency workers instead to fill additional hours. Representatives from local management stated that employees volunteered for the overtime paid at flat rate in preference to the engagement of agency workers.
The Unions stated that on becoming aware of the situation they made it clear to management that this was a breach of the 2009 National Agreement and sought a termination of the practice.
Having considered the submissions of both sides it is clear to the Court that by paying overtime at flat rate Management were in breach of the 2009 National Agreement. The 2009 National Agreement has since been superseded by the terms of the Haddington Road Agreement 2013 and overtime is paid in accordance with the latter agreement since 1stJuly 2013.
The Court upholds the Unions’ contention that there was a breach of the 2009 National Agreement, however, it is also recognised that employees volunteered for the overtime paid at flat rates. Therefore, the Court recommends that 65% of the outstanding retrospective overtime payments should be paid to the employees in question. This payment should be paid in two equal instalments, the first to be paid on 1stDecember 2013 and the second on 1stJuly 2014.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st October, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.