FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MERCY UNIVERSITY HOSPITAL - AND - A DOCTOR (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision No: ADJ-00002113.
BACKGROUND:
2. This case concerns a dispute by the Claimant concerning a claim for compensatory rest.
- The Union on behalf of the Claimant stated that he works a 1:4 rota and has repeatedly requested the Hospital to provide him with compensatory rest as provided for in the Consultant Rest Agreement.
- The Employer said that it pays the Claimant in lieu of compensatory rest based on the minimum 10 days per year for those on 1:4 rotas and 15 days per year for those on 1:3 rotas.
This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 11 July 2017 the Adjudication Officer issued the following Recommendation:-- “Taking into account the issue of Consultant Rest Days was the subject to collective negotiation under the Public Service Agreement and binding arbitration under that Agreement. The parties then collectively agreed how to implement that binding arbitration. It is on that basis that this matter is not for renewed consideration or arbitration in respect of individual consultants but should instead be referred back to the Workplace Relations Commission or the Labour Court as a collective dispute.
The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 15 August 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 7 November 2017.
DECISION:
This is an appeal by the Claimant of an Adjudication Officer’s Decision concerning his claim for compensatory rest as provided for in the Consultant Rest Agreement (the Agreement) agreed between the HSE and the Irish Medical Organisation. The Adjudication Officer held against his claim as the issue had already been the subject of a binding Labour Court Recommendation, and he recommended that its implementation should be referred back either to the National Implementation Body or the Labour Court.
The Claimant has been employed by the Hospital as a Consultant General and Vascular Surgeon since August 2013. As part of his role he participates in a 1:4 rota for on-call responsibility. Before the Adjudication Officer he sought compensatory rest as provided for in the Agreement. By letter dated 6th April 2017 the Hospital stated that payment was made to him in May 2016 in accordance with the terms of the Agreement in respect of the period from 1st January 2013 until 4th May 2014, i.e. phase one. However, it stated that in respect of the second phase, the period from 5th May 2014 onwards, compensatory rest has a number of elements, compensatory rest or payment in lieu can be granted for call outs and telephone calls, these rates will vary depending on time of day/days of the week. It stated that this was an onerous task. However, the Union point out that the Claimant has not been compensated in any way for rest accumulated since 5th May 2014.
The Agreement provided that in the event of operational reasons preventing a Consultant from availing of their compensatory rest within 8 weeks, the hours outstanding will be paid at the relevant hourly rate. The Union, completed an exercise on the Claimant’s outstanding rest for the period from 1stJanuary 2015 to September 2015 and estimated that he was owed €18,846.88 for that period. It suggested that this was a sample of the amount of compensatory rest he would typically accrue.
The Hospital rejected the claim on the basis that the dispute involved a collective issue as it arises from the Agreement and the parties had collectively agreed how to implement the Agreement. It submitted that there are a substantial number of hospitals implementing the Agreement on the same basis as it does, i.e. based on the minimum 10 days per year for those on 1:4 rotas and 15 days per year for those on 1:3 rotas.
Having considered the submissions made by both parties the Court is of the view that the issue before it concerns the application of the Agreement to the Claimant concerned with this claim and accordingly does not accept the objection raised by the Hospital. On that basis, the Court hereby makes the following decision on the matter in dispute.
The Court notes that while the Hospital is of the view that the recording and validation of information on on-call incidents can be an onerous task, it was confirmed by it that data relating to the Claimant’s on call hours is available in order to make the necessary calculations. The Court also notes that compensation in respect of telephone consultation calls is not being sought by the Claimant.
The Court also notes that the Agreement provides that in the first-place time off should be given in respect of time spent on on-call incidents in recognition of the impact that onerous rotas have on personal and family life.
In all the circumstances of this case, the Court recommends that the Hospital should make the necessary calculations in respect of the on-call incidents the Claimant was involved in, in the period from 5th May 2014. Accordingly, the Claimant should be compensated in line with the terms of the Agreement, disregarding the telephone consultations calls.
Therefore, the Court upholds the Claimant’s appeal and overturn the Adjudication Officer’s Recommendation.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
30 November, 2017Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.