Complainant

Respondent

Anonymised Parties

An Electrician

A Health Service Provider

Representatives

Connect Trade Union

The Respondent was represented by its Employee Relations Advisor

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00020465-001

10/07/2018

The Worker has been employed by the Employer as an Electrician since 1992 and is based at a regional hospital. The Worker was paid a weekly on-call allowance during the period from 1999 to 2017. The payment of this allowance was discontinued by the Employer in June, 2017 on the basis that the Worker refused to participate in the formal on-call roster. This dispute relates to a claim by the Worker to have an on-call allowance reinstated by the Employer.

The Worker’s position in relation to this dispute can be summarised as follows:

·         In 1999 the Craftworkers who were based at the Regional Hospital where the Worker is located took up on-call duties in the out of hours period and a weekly allowance of €120 (currently €150) was agreed as an on-call allowance per trade. All of the electrical and mechanical personnel agreed to share this sum equally, whether a person was on a formal roster or providing cover informally when required. The allowance of €30 per week was paid to five electricians and 5 plumbers.

·         One plumber opted not to go on a formal roster (as did the Worker) and both were paid the €30 per week allowance.

·         In 2005, the Employer sought to put the Worker on the formal on-call roster against his wishes which resulted in the matter being referred to conciliation without a resolution being agreed. The Worker continued to be paid the €30 per week allowance although he was not on the formal roster but did provide the cover when required.

·         Two craft positions at the hospital were on contract (one electrician and one plumber) for approx. 30 years. In 2007 management decided to recruit a permanent plumber but to leave the electrical position on contract. With six plumbers employed, Management increased the on-call payment to €180 per week with each plumber in receipt of €30 per week, albeit one was not on the formal roster but provided cover when required. Management are now paying six plumbers €180 per week with one not on the formal roster and six electricians €180 per week with one not on the roster.

·         From June 1999 to June 2017, the Worker was paid the share of the on-call allowance of €30 per week as part of a long-standing arrangement which was by 2017, custom and practice.

·         On 14 June, 2017, totally unexpectedly, the Worker was requested to attend a meeting with the Manager of the Technical Services Department when he was informed that payment of the on-call allowance to him would cease with immediate effect.

·         The Worker continues to provide on-call cover when required, albeit he is not in receipt of the on-call payment and not on the roster.

·         When the on-call allowance payment ceased, the Worker (with the assistance of his then Trade Union) sought to have the payment reinstated on the same basis as it was previously paid and as it continues to be paid to the plumber who is not on the roster. A number of meetings were held, and Management made proposals but not to reinstate the payment as it was paid previously. The Worker sought to have this issue resolved through the internal grievance procedures and has fully exhausted same without any success.

·         It is to the advantage of Management and the other electricians that the Worker continues to be available to provide cover for on-call when required and in the interests of fair procedures and equal treatment requests that the on-call allowance, being part of a long-standing arrangement and custom and practice, be reinstated to him on the same basis as previously pertained.

The Employer’s position in relation to this dispute can be summarised as follows:

·         The Worker is employed permanently as an Electrician within the Technical Services Department and is based at a regional hospital.

·         In 1999, following negotiations with the Worker’s Trade Union craft members agreed to on-call arrangements and subsequent allowances.

·         On-call cover is provided by three crafts, namely: carpentry, plumbing and electrical with one person from each craft on duty each week on a rota basis. An on-call allowance is payable together with overtime at the rate payable for each staff category respectively.

·         The on-call allowance is paid per week to an individual who actively participates in an agreed roster and is divided by the number of employees per craft participating in on call.

·         Over the period 2005 to 2006, the Worker chose to opt out of the on-call roster and was subsequently advised he would therefore be ineligible for an on-call allowance.

·         The Worker remained providing some ad-hoc on-call cover at his own discretion and was remunerated for individual call outs appropriately.

·         In 2017 following a review of all craftsmen’s allowances, it became apparent that while a variation order was raised to remove the on-call allowance from the Worker in 2006, for reasons unknown the variation order was not acted upon and the allowance had been incorrectly paid to him in the intervening years.

·         In June, 2017 when this error was realised the Technical Services Manager met the Worker and advised that it had come to his attention that the Worker was still in receipt of the craft allowance despite having opted out of participation in the on call roster of his own volition, some years earlier. The Worker was advised that a new variation order would be drafted to cease payment of this allowance.

·         No action was taken by the Employer to re-claim the overpayment and the allowance in question was ceased from 19 June, 2017.

·         Despite a number of meetings at local level and formal proposals put forward by the Employer to resolve the dispute in August, 2017, the Worker has made it clear that he does not wish to be part of the roster and wishes to cover on-call on a voluntary ad hoc basis and have his on-call allowance reinstated. This proposition is not acceptable to the Employer as it is not the same thing as being named on a roster and being available to Technical Services Department Management for call out duties. Furthermore, such an ad-hoc informal arrangement would not negate the expense that the Employer incurs of paying an outside electrical contractor to cover on-call every fifth week. The on-call plumbing craft workshop works effectively in that it negates any requirement to involve an external contractor in the provision of a comprehensive call out roster.

·         Ad-hoc participation in on-call is clearly incompatible with the Employer’s Terms and Conditions governing on-call allowances.

·         The Employer, in response to the Worker’s contention that the allowance is still being paid to a plumber who is not on the on-call roster, submits that on-call participation in the plumbing craft workshop works effectively in that it negates any requirement to involve an external contractor in the provision of a comprehensive call out roster.

·         The option of joining the on-call rota remains open to the Worker to participate in the on-call roster by covering the 5th week on call thus negating the requirement for an outside electrical contractor to cover on call.

·         As the Worker continues to decline to be scheduled on the on-call rota, he continues to be ineligible for the corresponding on-call allowance and on that basis the Employer submits that the claim before the Adjudication Officer should be dismissed.

I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.

The dispute in the present case relates to a claim by the Worker for the reinstatement of an on-call allowance of €30 per week. It was not in dispute that the Worker was paid this allowance during the period from 1999 to June, 2017 at which juncture it was discontinued by the Employer on the basis that the Worker was not participating in the on-call roster.

I note that the payment of this allowance came into effect in 1999 following an agreement between the Employer/Trade Union which was applicable to Maintenance Craftworkers (including electricians and plumbers) who were based at the specific Regional Hospital in question. I am satisfied that the terms of this agreement clearly provided that the payment of this allowance was contingent on the particular craftsman’s participation in the on-call roster.

I note that the Employer raised an issue with the Worker in April, 2005 in relation to his non-participation in the on-call roster and re-affirmed the obligation to do so in order to be eligible for payment of the allowance. The dispute between the parties in relation to this matter was not resolved at that juncture and the Employer contends that it was intended to cease the payment of the allowance. However, it appears that the Employer inadvertently continued to pay the allowance to the Worker thereafter until June, 2017 when payment was ceased, notwithstanding the fact that he had not been participating in the on-call.

I note that the Worker invoked a grievance through the internal procedures following the cessation of the allowance and that a proposal was put forward by the Employer on 10 August, 2017 with a view to resolving the dispute. The options for resolving the dispute which were set out in this proposal are detailed hereunder:

1.       That the Worker covers the fifth week on call and the allowance is reinstated.

2.       That the Worker opts not to cover the fifth week and does not get paid the allowance.

3.       That with agreement from the Worker and his colleagues in the department the five-week roster will be covered without an external contractor being engaged. I would need confirmation from all five members that they are satisfied and in agreement with this arrangement. On this basis we would not be of the expectation that the Worker needs to be formally named on the roster.

I note that the Employer confirmed at the oral hearing that this proposal remains available to the Worker with a view to resolving the dispute. In the circumstances, I recommend that the Worker should re-engage with the Employer with a view to resolving this dispute on the basis of the options provided for in this proposal.

I also recommend that in the event the parties should successfully resolve the dispute on the basis of agreement on any of the options set out in this proposal (or any variation thereof that is mutually acceptable to both parties) that the Employer should make a retrospective payment of the on-call allowance to the Worker from the date of its cessation in June, 2017 until the date of any such agreement.

I recommend that the Worker should re-engage with the Employer with a view to resolving this dispute on the basis of the options provided for in the Employer’s proposal dated 10 August, 2017.

I also recommend that in the event the parties should successfully resolve the dispute on the basis of agreement on any of the options set out in this proposal (or any variation thereof that is mutually acceptable to both parties) that the Employer should make a retrospective payment of the on-call allowance to the Worker from the date of its cessation in June, 2017 until the date of any such agreement.  

Industrial Relations Act 1969 – Trade Dispute – Section 13 – Health Service Provider - On-Call Allowance