FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ABILITY WEST (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. "Failure to Agree Method of Calculating Hours of Work on CIDs Derived from Temporary Contracts (Concerning Care Assistants, Social Care Workers and Instructors)".
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Unions on behalf of approximately 10 to 15 Workers currently employed as Care Assistants operating on contracts of indefinite duration (CID). The Employees provide relief cover on an "if and when" basis as required by the Employer. It is the Unions' claim that the Workers have established regular working hour patterns and accordingly are seeking regularisation of these hours so as to provide certainty and a guarantee of working hours to the Workers. The Employer rejects the Unions' claim arguing that it is not in a position to offer permanent contracts with guaranteed working hours to the Workers. The 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 3rd July, 2013, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 25th February, 2014.
UNIONS' ARGUMENTS:
3. 1. The Workers lack certainty and have no guarantee of working hours.
2. The Workers have established regular patterns of work. The Unions contend that these hours should be regularised.
3. The Workers should have the ability to contractually rely on their hours of work each week.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer is operating in a unique sector where the "if and when" contract is extremely suitable to business requirements.
2. The Employer is not in a position to offer contracts with specified working hours.
3. The Employer does not have the financial capability to incur the costs associated with offering alternative contracts of employment.
RECOMMENDATION:
The Court in this Recommendation will deal with the one issue which was jointly referred to the Court and that issue concerns the Unions’ claim on behalf of between ten to fifteen employees employed as relief staff for regularisation of working hours. The Unions submitted that these employees had established a pattern of working hours over a sustained period, however, they had no guarantee of hours. However, the Unions were anxious not to give specific details of the individuals concerned.
The Company stated that it employs over 100 staff who work on a relief/locum panel providing work on an “if and when required” basis. It stated that in the event that specific hours were to be applied to these contracts it would have little option but to consider redundancies and layoffs in addition to reviewing existing contracts. In any event the Company stated that without details of those employees who are seeking regularisation it was impossible to adequately address the Unions’ claim. However, in an effort to address the claim, the Company undertook a review of vacancies and then proceeded to hold confined competitions during 2013 which resulted in 14 permanent appointments being made.
The Court is of the view that in the absence of any detailed information on the Claimants’ position in a situation where the majority are not party to the claim before the Court it is not possible for the Court to find in favour of the Unions’ claim.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th March 2014______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.