ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001391

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 17/05/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1946 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant has an existing red-circled agreement allowing her and her colleagues time off in lieu (TOIL) instead of payment of the sleepover allowance.

The Labour Court increased the payment from €42.80 per sleepover to €69.20 per sleepover. A circular was issued in this regard increasing the payments with effect from 18^th September 2014.

The complainant’s union on 4^th December 2014 claimed an increase in the TOIL pro-rata to the increase in the payment.

Management rejected this claim but confirmed that they were prepared to allow the employees concerned to opt for full payment of the increased allowance.

This is a minor claim affecting a reduced number of staff and concession of same would be treating all staff in a fair and consistent manner.

Respondent’s Submission and Presentation:

The Organisation is required to be compliant with public sector pay. The sleepover rate forms part of these consolidated pay rates.

The Labour Court determined that sleepovers are working time and must be paid. The historical agreement with this group of workers has been superseded by the Labour Court Recommendation and national discussions are taking place regarding the restructuring of working time for affected staff.

For the past 10 years all new staff are paid for sleepovers. These staff are now being paid the increased allowance.

The complainant and her colleagues have approx.. 11.8 weeks leave in total due to TOIL plus annual leave entitlements. Concession of this claim would increase this to about 15 weeks per year. The existing arrangement has caused major difficulties for the Organisation and was the subject of a LRC agreement dealing with these issues.

The Organisation exists to provide services to people with intellectual disabilities who require consistency and continuity in their care. Replacing key workers with locums to facilitate TOIL is not beneficial for that group.

Recommendation:

Section 13 of the Industrial Relations Act 1946 requires that I make a recommendation to the parties concerning this dispute.

Issues for Decision:

N/A

Legislation involved and requirements of legislation:

N/A

Recommendation:

I note that the Labour Court based its Recommendation on the national minimum wage and that since the time of that Recommendation the minimum wage has increased to €9.15 per hour with effect from 1^st January 2016. I also note that discussions on the restructuring of working time are ongoing but that finalisation in this regard may take some time.

The complaint before me is specific to one named individual member of staff and I can only make a recommendation with regard to that person.

As indicated by the employer all new staff taken on since 2006 have not had the option of TOIL. This obviously means that those staff who do exercise this option are by definition long serving staff and have had the benefit of the extra accrued time off for a considerable period of time. I therefore accept that for someone in that position it is not a simple matter of swopping that time that has become part of their working arrangements for money.

I also understand that the Organisation is providing a vital service and that managing the implications of increased TOIL could well cause them serious difficulties. Even managing the current level required the assistance of an agreement brokered by the LRC.

On the basis of the above facts I recommend that the existing level of TOIL remains at 1.5 hours per sleepover and that the complainant be paid the difference between the value of the sleepover rate prior to the implementation of the Labour Court Recommendation and the current rate of €73.20 per sleepover pending the outcome of the national negotiations on restructuring.

Dated:   30^th June 2016