ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00007603

Parties:

Complaint(s):

Date of Adjudication Hearing: 14/06/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Location of Hearing: Room G.07 Lansdowne House

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint/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).

Background:

The Complainant is employed as tractor operator by a local authority and has service amounting to 28 years.

CA-00010248-001 Complaint under section 13 of the Industrial Relations Act, 1969.

Summary of Complainant’s Case:

The Complainant submitted that he had been in receipt of a Mechanical Grab Differential from April to November 2013. This differential attracts a daily payment of 7.77 euro. This differential was paid to the Complainant as his daily work involves use of what is called a 4 in 1 bucket, this bucket is attached to the tractor driven by the Complainant.

According to the Complainant an additional function of the 4 in 1 bucket is to grab objects mechanically. This function attracts the allowance referred to as the Mechanical Grab Differential. It was submitted that in November 2013 his allowance was changed to a digger allowance which attracts an allowance of only €4.05 per day. However, following representations it was agreed to pay the Complainant the Mechanical Grab Differential. And this allowance was restored.

In January 2014 the allowance was again stopped and the lesser allowance of €4.05 was paid to the Complainant. The Complainant submits that this was done without any notification or consultation.

The Complainant put forward that he has made numerous attempts to have the matter resolved at local level but to no avail. In February 2017 the Complainant's union contacted his employer to try and resolve the matter.

It is the Complainant's view that there is very little difference between the 4 in 1 bucket and the mechanical grab and therefore he should be paid the higher rate for using the 4 in 1 bucket.

Summary of Respondent’s Case:

The Respondent submitted that the Complainant is requested to use the 4 in 1 bucket in the course of his duties. The local authority has agreed with the Trade Unions a list of differential payments which are essentially task related payments for specific tasks. The rate agreed is paid on a daily basis whenever a staff member carries out a listed task.

There is no differential payment agreed for use of a 4 in 1 bucket. The Respondent submits that it could have easily adopted the position that no differential payment existed for the use of this machinery. However, as an act of good faith, the Respondent agreed to pay the differential payment "Digger 2-JCB Cemeteries" which attracts a daily rate of €4.05.

The Respondent submitted that it has always been consistent in its view that this is the appropriate payment as the Mechanical Grab is completely different piece of machinery to the 4 in 1 bucket. In concluding the Respondent submits that the Mechanical Grab is not a suitable comparator to the 4 in 1 bucket.

Findings and Conclusions:

In this instance the Respondent has said that the 4 in 1 bucket should get the same rate as the "Digger 2- JCB Cemeteries" as it is the most appropriate comparator. The Complainant disagrees and believes he should be paid the Mechanical Grab rate as there is little difference between the two machines/tasks.

It is not my role to decide on what differential should attach to what piece of machinery; that is up to the employer to agree in negotiation with the appropriate union. It would seem the 4 in 1 bucket has no differential attached to it at present and the Respondent has chosen what it believes to be the closest match in order to gauge what differential is warranted.

At the moment the Complainant is not using the Mechanical Grab and therefore he is not entitled to receive the accompanying allowance or retrospection as claimed.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

On the basis of the evidence I do not recommend in favour of the Complainant. However, I recommend that when the next round of negotiations takes place in relation to differentials the 4 in 1 bucket should be included as a separate item on the list.

CA-00010248-002 Complaint under section 7 of the Terms of Employment (information) Act, 1994.

Summary of Complainant’s Case:

It is the Complainant's submission that his Terms and Conditions of Employment were changed without consultation or agreement as in January 2014 the Complainant's differential was changed from €7.70 per day to €4.05 per day with no consultation, explanation or agreement.

The Complainant believes that the Respondent has behaved in a manner that was not reasonable or fair and that he was not notified that his differential would be changed and that he would suffer a loss as a result.

In direct evidence the Complainant stated that he had got a letter from the Respondent stating that he was being the correct rate, however no meetings took place at local level.

Summary of Respondent’s Case:

The Respondent submitted that the higher payment made to the Complainant in the period around November 2013 was an error. It was also stated that the Complainant was informed at the time as to the reasons why this higher payment was stopped; the position was made clear to the Complainant in 2014.

Findings and Conclusions

There was no evidence adduced to support the Complainant's contention that his terms and conditions were changed; all that happened was that an overpayment made in error was rectified. The Complainant was also informed at the time the reasons why he was not entitled to receive the higher payment.

The Respondent put forward that the changes made were done to rectify an error. Rectifying an error in payment is not a change of terms and conditions of employment.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

On the basis of the evidence adduced I do not find in favour of the Complainant and his complaint fails.

Dated:   10^th July 2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

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