FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : UNIVERSITY COLLEGE CORK - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. A claim for compensation for the loss of overtime earnings.
BACKGROUND:
2. This dispute relates to a claim by the Union for compensation for loss of earnings resulting from a local level agreement reached between the Service and Security Operatives (SSOs) and University College Cork (UCC).
The Employer said overtime is not compulsory and if a need for overtime arises, it is offered on the basis of a points system with a view to ensuring that each staff member is given an equal opportunity to work same, should they so wish.
- This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 12th September 2016 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 5thOctober 2016.
UNION’S ARGUMENTS:
3. 1. The Union and UCC had concluded a local agreement under the Public Service Agreement in 2012 which provided for changes to rosters and to numbers of staff. At that time it was recognised that a loss of overtime would arise from the new arrangements.
2. The Union is seeking the application of the national formula of 1.5 times the actual annual loss.
3. All overtime must be covered by the SSOs and staff have been told that if overtime cover is not provided, an external contractor will be brought to do the work.
EMPLOYER'S ARGUMENTS:
4. 1. The Union has not identified regular and rostered overtime which has been lost to the SSO Staff.
2. Overtime is not contractual and is not provided for in SSO contracts of employment.
3. Only a claim for regular and rostered overtime can be considered under the terms of the Public Service Agreements.
RECOMMENDATION:
The Court has considered in detail the written and oral submissions of the parties in this case. The matter at issue essentially involves a dispute between the parties as to the applicability of the arrangement agreed under the Public Service Agreement as regards compensation for loss of earnings due to a reduction in overtime in the College for SSO’s.
The parties reached an agreement in 2012 and the implementation of that agreement had the effect of reducing the availability of overtime to SSO’s. The overtime in question relates to a variety of circumstances arising on the College ranging from cover for sick leave to work at conferrings, rag week, Freshers’ week, exam periods, open days, Governing Body meetings, setting up rooms, moving of furniture etc. In addition overtime arose prior to 2012 in connection with structured arrangements for the daily opening and closing of certain buildings / facilities on campus.
The Union regards the overtime as having been mandatory for its members because it believed that if the members did not perform the overtime it would have been carried out by an external contractor. The Union accepted that individual members had the option of refusing overtime when offered albeit that the system employed to ensure equity among SSO’s in terms of access to overtime meant in practice that if all colleagues refused the same overtime an individual could be asked a second time. There was no adverse consequence for the individual if he or she refused the overtime a second time although that circumstance was not contended to have arisen with any frequency.
The College maintained that the overtime was without obligation on either side and that staff were not contractually obliged to agree to any request to work overtime. The College stated that no member of the SSO staff was ever disciplined for refusing to work overtime.
The Court cannot accept that overtime which a person has the option of refusing is mandatory in the sense that he or she could be described as having any contractual or other obligation to work overtime when requested. The Court acknowledges the Union contention that the group of SSO’s were of the belief that if no SSO was willing to work a particular period of overtime that an external provider would be engaged to do so. The Court notes that the College denies that it ever put forward a position of this nature to the Union. In any event a concern as regards the alternative method which the College might employ to ensure that the work was carried out if no staff agreed to work overtime cannot be seen as equating to an obligation on the part of the individual to work the overtime.
The Court is effectively being asked to interpret the arrangements agreed between the parties under the Public Service Agreements. It is common case that all SSO’s have suffered a loss in overtime earnings as a result of the 2012 agreement and the flexibilities provided for therein. The Court has been able to determine that the overtime in question was not mandatory for any individual. The Court has also been able to determine that certain overtime was regular and structured insofar as it was employed to cover daily events. Other overtime was related to recurring and special events as they occurred at intervals on the campus.
It is the Court’s view, particularly with regard to blocks of work which arise daily and which are performed other than as part of the normal working week, that requirements for mandatory overtime working are commonly a feature of contractual arrangements. In this case the College appears to have been able, on the basis of certainty as regards the willingness of SSO’s as a group to work certain duties on overtime, to plan its operations including the opening and closing of buildings, without recourse to mandatory overtime working arrangements.
The Court recommends that the parties utilise their agreed arrangements for interpretation of the Public Service Agreement to determine whether the overtime in question which is not mandatory, obligatory or contractual for an individual but which is in some cases regular and in other cases occurs in conjunction with special and recurring events on campus meets the parties’ agreed criteria for compensation in the event of loss.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
12th October, 2016Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.