FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KILDARE COUNTY COUNCIL (REPRESENTED BY LGMA) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer Decision No(s) ADJ-00001895.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 3rd January 2017 the Adjudication Officer issued the following Recommendation:-
- Based on the evidence presented by both parties, I find that the complaint is well-founded in part. I recommend that the Respondent pay to the Complainant 3 hours overtime per week for the completion of paper work associated with his role.
The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 13 January 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 7 March 2017.
UNION’S ARGUMENTS:
3. 1. The employee has had historical overtime of 5.5 hours per week unilaterally withdrawn from him on his re-assignment to Kildare County Council.
2. He should be entitled to the 5 hours overtime allowance per week which is paid to GSS staff.
EMPLOYER’S ARGUMENTS:
4. 1. The employee was considered a new beneficiary of the overtime allowance and as such he was not entitled to payment on taking up the role of GSS.
2. The employee is in benefit of a red circling agreement in respect of his own salary.
DECISION:
The Court has carefully considered the parties’ written and oral submissions.
The Trade Union clarified to the Court that the matter of the Claimant’s historical overtime working arrangement prior to the abolition of Athy Town Council was not before the Court. The Trade Union clarified further that the claim before the Court was that the Claimant should be afforded access to an allowance equivalent to five hours overtime per week (book hours) which has historically been paid to General Service Supervisors (GSS) in Kildare County Council.
The Claimant was employed as Town Foreman by Athy Town Council prior to its abolition. Upon abolition of the Council in 2014 the Claimant was re-assigned to Kildare County Council as a GSS. The requirement for him to work overtime on Saturdays and Sundays in the manner he had previously no longer applied after December 2014. The Claimant’s grade and payscale, including a higher rate of pay than that of a GSS, were ‘red circled’ to him on his re-assignment. In the period since his re-assignment the Claimant has had access to significantly more overtime as a GSS in Kildare County Council than he had while Town Foreman in Athy.
The Council asserted to the Court that the terms of Circular EL06/2012 applied to the current situation. The Council clarified that in implementation of that circular following its issue in 2012 the Council had ‘red circled’ the historic allowance equivalent to a five hour overtime payment per week to then existing beneficiaries of the payment. The Council decided that the allowance would not, in consequence of the circular, be paid to ‘new beneficiaries’. In the period since implementation a number of GSS staff have been appointed to the Council and none of those staff are in receipt of the allowance.
The Court accepts that the term ‘new beneficiary’ as used in Circular EL06/2012 means a person who had not previously been a beneficiary of an allowance. This category is distinguished in the Circular from ‘existing beneficiaries’ who are people who, at the date of issue of the Circular, were actually in receipt of the allowance. The Claimant in this case had not previously been in receipt of the five hour per week allowance (book hours) and therefore he would, for the purposes of the Circular, have to be regarded as a ‘new beneficiary’.
The Court notes that the Claimant enjoys a higher rate of pay than other GSS staff of the Council. The Court notes also that the Claimant is in receipt of significantly greater amounts of overtime than he had been in receipt of while employed by Athy Town Council. Finally, the Court notes that the treatment of the Claimant by the Council is in conformity with its treatment of all staff appointed to the position of GSS since implementation of Circular EL06/2012.
The Court can find no basis for identifying the circumstances of the Claimant as exceptional to the degree that the Council should treat him differently to other GSS staff appointed since implementation of the Circular. Similarly, the Court can find no basis to support the contention that the Council should, at this remove, revise the methodology employed to implement Circular 06/2012 in respect of this allowance particularly given that any such revision could affect the group of staff to whom the allowance is currently ‘red circled’ and paid.
For these reasons the appeal succeeds and the decision of the Adjudication Officer is set aside.
Signed on behalf of the Labour Court
Kevin Foley
CO'R______________________
14 March, 2017Chairman
NOTE
Enquiries concerning this Decision should be addressed to Clodagh O'Reilly, Court Secretary.