ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005696

Complaint for Resolution:

Date of Adjudication Hearing: 17/01/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and Section 7 of the Terms of Employment ( information) Act ,1994 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

A Nurse Officer V A Public Body

Complainant’s Submission and Presentation:

The complainant has worked as a Nurse Officer since 2008 .He worked a 24 hr shift roster for a period of 7 years . He had transferred to the centre on the basis of acceptance of this roster . The complainant was informed by his Union that a different roster was to be implemented due to the new entrants being “ disenfranchised “.

The complainant anticipated an alteration in his work practice ,meaning more unsociable hours, a reduction in night duty, enhanced day and a lot less pay .The new roster was implemented on 29 October 2016 and the complainant contended that he had not been heard in his objections to the changes .His complaint centred on not being notified of the change to his terms of employment .

He contended that he would sustain a €20,000 loss during the course of his future 20 years based on the material changes, This mattered as he was the sole earner in his family . He understood that there was to be no further loss of earnings under National Agreements and submitted that the enforced roster change was a breach of this national agreement . He was notified of the roster change within 29 days of the roster change .

The complainant made a further submission on the method of payment at the centre in the case of swopped premium shifts .The complainant had worked nights for a colleague but the central salaries had paid the premium to the colleague instead . The complainant contended that this was unfair .

Respondent’s Submission and Presentation:

The respondent disputed the claim .

The respondent gave an extensive background to the roster changes . The National Monitoring and Review committee received rosters submitted by the employer and staff side in accordance with the Proposal for Organisational Change in the respondent service . The rosters and alterations of same were to be agreed nationally through collective bargaining .

The Respondent drew the attention of the Hearing to the Public Service Agreement ,( Haddington Rd) stated goal in the respondent service :

“ A reduction in the expenditure on agency and locum healthcare staff consequent on the staffing of this area in accordance with the agree report on the task review “

The Joint Task Review of the respondent Healthcare Area recommended an increase in 4 Nurse Officers to 11 Nurse Officers for adequate staffing and rosters were agreed with the representative body in September 2016 .

The respondent submitted that there was no requirement to provide notification to the complainant under section 5(2) of the Act as there was no change in Saturday allowance, or the general parameters of the 7 day roster . The  Collective Bargaining process had resulted in notification of change to the complainant and these changes did not come under the definition of a requirement for written notification as per S.5(1) of the 1994 Act . The respondent contended that they had satisfied the terms of the Act and any grievance arising should be brought to the attention of the relevant local or national monitoring committee for arbitration rather than Adjudication .

The changes were outlined as involving a change from a 6 week to a 8 week roster , matching shift patterns to identified tasks, and shortened span of night duty to 12 hours .

The respondent operates a mechanism via local monitoring and review arrangements to address problems that arise in relation to the implementation or operation of the Proposal for Organisational change . A National Monitoring and Review committee meeting had met on 13 October, 2016 but no issues arose from the complainants centre .The Chairman of the group announced a 6 month review period on implementation of revised rosters . The respondent submitted that the complainant was best placed to advance his case to that forum rather than the instant complaint .

The respondent closed by stating that “ rosters for each institution may be jointly refined at local level by agreement within the parameters of national general principles agreed at national level “.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 7 of the Terms of Employment ( Information) Act, 1994 requires to make a decision in the case .

I have inquired into the case and have considered both parties written and oral submissions . I understand and appreciate the case made by the complainant that he did not anticipate any further pay reductions during the course of the presiding national agreement . The respondent confirmed that the changes were agreed at national level and protestations were not recorded in the national review meeting in October 2016.I found that the complainant did not seem to have been appraised of these developments via workplace discussions .

However, the case before me today is one of employment rights as opposed to an issue arising directly under collective bargaining. Neither party had the original statement of terms of employment at their disposal during the hearing. Following the hearing , I wrote to both parties seeking sight and consideration of this key document .I did not receive this statement from either party and I extended the response time until February 24, 2017. I heard from the complainant on 24 February 2017 that he had been unsuccessful in his attempts to secure the document from the respondent . I did not hear from the respondent .

The complainant submitted his complaint on the grounds that he had not been heard before the terms of his employment were changed .There is guidance in Sections 3 and 5 of the Act as to what the complainant can expect in terms of protection under the Act .

Notification of changes.

5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under S. 3, 4 or 6 of the Act,the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

( a) 1 month after the change takes effect, or

( b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under S 3 or 4 .

The complainant confirmed that he was notified 29 days in advance of the roster change .The respondent  has contended that Section 5(2)(1) of the Act has no application to collective agreements .

Section 6 of the Industrial Relations ( Amendment ) Act 2015 defines an employment agreement as :

An agreement relating to the remuneration or the conditions of employment of workers of any class, type or group made between a trade union or trade unions of workers and one or more than one employer or a trade union of employers,that is binding only on the parties to the agreement in respect of the workers of that class, type or group.

I find that the Haddington Road and now Lansdowne Road Agreements are encompassed by this definition and are collective employment agreements . In O Cearbhaill V Bord Telecom Eireann[1994] ELR 54, Mc Carthy J held that it was sufficient that a Trade Union had negotiated change in accordance with the Post and Telecommunications Act ,1983 and individual consent was not a pre requisite to the change .

In this case , the Union was not present at the hearing .

At the hearing the respondent set out the pathway necessary for the complainant to follow to influence change on the roster system, which is in its infancy .I urge the complainant to follow this path .

I find that in the absence of a statement in writing containing particulars in accordance with section 3 of the Act ,the complainant is in “ no mans land “ as he cannot reasonably be expected to comprehend or respond to changes in his terms and conditions in the continued absence of a foundation document of employment . The respondent emphasised the application of Section 3( 3) of the Act in this case regarding the provision of information on collective agreements to a employee :

“ ……which the employee has reasonable opportunities of reading during the course of employment or which are reasonably accessible to the employee in some other way “ I accept this emphasis .

I must now assume that the respondent did not provide a statement in writing to the complainant in accordance with Section 3 of the Act .I must find, therefore , that the respondent is in continuing breach of Section 3 the Act and I order the respondent to give the complainant the required statement inclusive of a specific section on payment of the correct premia for a corresponding premium shift worked within a 4 week period of this decision .

I find that the complaint under Section 5 of the Act to be not well founded as it was not disputed that the complainants’ employment is governed by collective agreement .

Dated:   4^th April 2017