FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KILKENNY BOROUGH COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appealing against a Rights Commissioner's Decision r-134237-ir-13/JT.
BACKGROUND:
2. The Claimant has worked for the Council between 2004 and 2007 on a temporary and seasonal basis. In 2007 he was awarded the full time position of Driver in the machinery yard working a five day week Monday to Friday. In 2012 he joined the outdoor staff as a Parade Warden and works a 39 hour week over 6 days.
"ihave considered the submissions of both parties. I have noted the history of the negotiation of the Allowance and consider that it was conceded to certain categories of employees on a staged basis and cases made at the time.
In regard to the claims made on behalf of all the Claimants at this hearing, I am not convinced of their merits of these claims and do not find them well founded.
Therefore, they fail".
On the 30th April, 2014 the Worker appealed the Rights Commissioners 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 29th October, 2014.
UNION'S ARGUMENTS:
3. 1. The Claimant is entitled to be paid the weekend allowance from June 2012 in line with custom and practice
2. The Claimant was in receipt of the subsistence allowance payment while in the machinery yard, this should have been retained by him under the 1987 Agreement after he transferred.
COMPANY'S ARGUMENTS:
4. 1. When the Claimant accepted the post of Parade Warden he was fully aware of of the terms and conditions of the position which was outlined to him by the Senior County Engineer.
2. The 1987 Agreement was replaced by later Public Service Pay Agreements and therefore cannot now be used as the basis of a cost increasing claim.
DECISION:
The appeal before the Court concerns two claims by the Union on behalf of a worker for retention of subsistence allowance in lieu of an eating-on-site allowance backdated to June 2012 and payment of a weekend allowance also from that date. The Rights Commissioner did not find in favour of the Claimant's claims.
Retention of the Higher Allowance Claim
The Claimant was employed by the Council as a Driver since 2004 until he transferred to the role of Public Realm Warden/Parade Warden in June 2012. As a Driver, the Claimant was in receipt of a subsistence allowance of €28.35 per week. As a Public Realm Warden/Parade Warden he is entitled to an eating-on-site allowance of €1.90 per day. The Union on behalf of the Claimant sought retention of the higher allowance as it submitted that this was provided for under Clause 10 of the Local Government Staff Negotiations Board Agreement of 1987, which states:-
- “Where existing allowances in respect of subsistence are more favourable than the eating-on-site allowance, they will continue to apply on a personalised basis until the new allowance matches the personalised allowance. Existing allowances should be frozen at their current rates.
New employees will only be entitled to the eating-on-site allowance.”
Management disputed the Union’s interpretation of Clause 10 and stated that the Claimant must meet the conditions of payment for a subsistence allowance i.e. the employee must be away from base for two hours at lunchtime. This provision applies to existing beneficiaries who meet those criteria only and all new employees since 1987 are only entitled to the eating-on-site allowance. Management stated that the Claimant did not meet the criteria for payment of the subsistence allowance. However, he does qualify for an eating-on-site allowance.
Having considered the submissions of both parties the Court is of the view that the Claimant is not entitled to the higher allowance as he commenced employment after 1987 and he does not meet the criteria for payment of the subsistence allowance.
Accordingly, the Court upholds the Rights Commissioner’s Recommendation and rejects the Union’s appeal.
Weekend Allowance Claim
The Claimant works 39 hours per week over six days and is claiming payment of the weekend allowance as he is required to work on Saturdays as part of his normal roster.
Management stated that the Claimant is on the Special Works Foreman Grade salary scale and stated that his scale reflects the fact that Saturday working is envisaged as part of the duties of the post and that an amount of €33.60 is included in the rate to reflect Saturday working. The scale ranges from €594.54 to €616.08 per week whereas he had been paid €612.00 per week (the maximum of the scale) when he was employed as a Driver in the Machinery Yard on a five-day week.
The Union submitted that he is earning €4.08 more than in his previous role and yet he is required to work three hours on Saturdays as a Parade Warden and accordingly sought payment of the €18.50 weekend allowance.
Having considered the submissions of both parties the Court accepts that the Claimant moved from being a Driver in the Machinery Yard to his new role as Parade Warden. The rate he is paid as Parade Warden is the appropriate rate as was paid to his predecessor in the job. Therefore, while the differential in his pay from his previous role may reflect a difference of just over four euro, he is in fact receiving a higher payment to reflect the change from five to six-day week working, therefore the Court is satisfied that he is paid correctly and accordingly does not recommend in favour of the Union’s claim.
Accordingly, the Court upholds the Rights Commissioner’s Recommendation and rejects the Union’s appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th December, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.