FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : OUR LADY'S CHILDREN'S HOSPITAL CRUMLIN (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. 1. Annual leave entitlements 2. Public holiday premium pay.
BACKGROUND:
2. This dispute could not be resolved at local level and was the subject of a of 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 21st June, 2018, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 17th August, 2018.
UNION'S ARGUMENTS:
- The two workers involved have enjoyed an additional 39 hours' annual leave per annum for several years. This leave has been approved by line management.
- This entitlement to annual leave falls within the definition of custom and practice and should be retained on a "red-circling" basis.
3. With regard to the withdrawal of double premium payments when working on public holidays, the Union are seeking restoration of the premium to January 2016 and compensation for future loss using the Public Service Agreement Formula.
HOSPITAL'S ARGUMENTS:
- The two workers have been incorrectly receiving a night shift premium when working a public holiday.
- The Hospital has a service level agreement with the Health Service Executive (HSE) which requires it to comply with HSE terms and conditions of employment.
- The annual leave which has applied to the two workers involved is out of line with the standard annual leave granted to Porters in the health sector.
- The Hospital has offered to make a payment in line with the established compensation terms under the Public Service Agreements.
RECOMMENDATION:
The matters before the Court concern the removal of benefits to two Night Porters. The benefits removed were (i) the withdrawal of double premium payments when working on public holidays and (ii) the withdrawal of an additional 39 hours’ annual leave.
Management removed the benefits as they were not part of the standard terms and conditions of employment for a Porter and had been applied in error to the two Claimants involved. It stated that the Claimants received an overpayment of T + ¼ night shift premium when they worked on public holidays in addition to being paid double time for the hours worked plus payment for the public holiday. However, as such hours were worked on an overtime basis there was no entitlement to a night shift premium.
It stated that the arrangement to have an additional 39 hours’ annual leave was ad hoc and unsanctioned. It did not reflect the annual leave entitlements specified in the Claimants’ contracts of employment nor those applicable to their grade and accordingly they had no entitlement to the additional annual leave.
The Union maintained that both benefits had historically been paid to the two Claimants involved. It pointed out that the benefits had been removed before the Claimants were formally advised of the alleged erroneous practices. The Union sought full retrospection for the night shift premium on public holidays back to the date it was removed in January 2016, compensation for the loss of earnings under the Public Service Agreement for the night shift premium and retention of the 39 hours’ additional annual leave per annum for the two Claimants on a “red-circling” basis.
Having considered the oral and written submissions of both parties the Court makes the following recommendation in full and final settlement of the matters before it: -
- Taking account of the Public Service Agreement on compensation for loss of earnings and all other elements of this case, the Court recommends that a once-off lump sum payment of €2,500 should be paid to each of the two Claimants involved in the claim before the Court.
Signed on behalf of the Labour Court
Caroline Jenkinson
JD______________________
23 August 2018Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Deegan, Court Secretary.