FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE DUBLIN NORTH EAST - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision No: r-147576-Ir-14/JW
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner's Decision No: r-147576-Ir-14/JW. The issue concerns a claim for loss of earnings incurred by the worker following a change in work practice agreement concluded between the parties. The Union contends that although the worker had a contract for 10 hours per week as an "if and when" needed driver, he constantly exceeded these hours over many years. The Union is seeking the agreed compensation on the basis of the reduction of actual hours and not the notional losses that would have occurred based on the workers contractual number of hours.
Management's position is that the 2012 Agreement included a process for the calculation of the losses incurred. It contends that this process has calculated the appropriate level of compensation due to the worker.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 6th July 2015 and did not find in favour of the worker's claim. On the 10th August 2015 the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 9th October 2015.
UNION'S ARGUMENT:
3 1 The Agreement concluded between the parties does not preclude the worker from raising an individual grievance in relation to the appropriate level of compensation due. The worker continually worked in excess of his contracted number of hours per week. The additional hours were always regular and rostered and should be compensatable in line with the terms of the Agreement.
MANAGEMENT'S ARGUMENT:
4 1 The worker had a contract of 10 hours per week as an "if and when" driver. The additional hours were carried out as cover for other drivers who were on annual leave or absent from work for other reasons. These additional hours were not regular and rostered and therefore no additional compensation is due. Management contends that the appropriate compensation due to the worker has been calculated in line with the agreed process and on the basis of his contractual hours.
DECISION:
This is an appeal of a Rights Commissioner Recommendation. The Court has considered carefully the submissions of the parties and the points made at the hearing.
The Court is clear that an extensive process of joint engagement has taken place in relation to matters giving rise to the current case.
The Court accepts that the claimant’s situation is comprehended by the terms of the collective agreement reached at the Labour Relations Commission on 12thJuly 2013. That agreement provided in particular that the HSE would engage fully with staff to investigate if there has been any loss of Regular / Rostered time, in accordance with the terms of the Public Service Agreement. The Court also accepts that the parties agreed the mechanisms for reckoning of losses for ‘if and when’ staff. Those mechanisms have been applied to a number of other ‘if and when’ drivers as part of the implementation of the 2012 agreement.
The Court cannot but support the implementation of the 2012 agreement and the agreed mechanisms for measuring losses in the case of ‘if and when’ drivers.
The Court recommends that the parties should engage to agree the detail of the claimant’s reckonable pattern of employment in the agreed reference period. A ‘reckonable pattern of employment’ in this case should be as was agreed between the parties and applied to the circumstances of other ‘if and when’ staff. The parties should, as part of this process, share all relevant details as regards the employment of the claimant in the agreed reference period.
Signed on behalf of the Labour Court
Kevin Foley
30th October 2015______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.