FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : COMMISSION FOR RAILWAY REGULATION (REPRESENTED BY MS ROSEMARY MALLON B.L. INSTRUCTED BY KANE TUOHY SOLICITOR) - AND - FORSA DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr Hall |
1. On call allowance.
BACKGROUND:
2. This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 16 January 2019 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on 13 March 2019.
UNION’S ARGUMENTS:
3. 1. The five Inspectors, the subject of this claim, are being less favourably treated in relation to the non-payment of an on-call allowance while fully partaking in the rostered on-call arrangements.
2. The Commission for Railway Regulation Inspectors rate of pay is Engineer Grade II and past serving Inspectors working the on-call roster were also paid at Engineer Grade II salary scale and were additionally in receipt of the on-call allowance.
EMPLOYER'S ARGUMENTS:
4. 1. The Department of Transport has determined that no on-call allowance is paid to the Inspectors who were employed after the recruitment embargo was lifted.
2. The Inspectors are properly remunerated for the work done and in accordance with the terms of their contract.
RECOMMENDATION:
The Court notes that it is agreed between the parties that this dispute has come before it under the terms of the Clause 4.1 of the Public Service Stability Agreement 2013-2018 (The Lansdowne Road Agreement) as extended by the Public Service Stability Agreement 2018 - 2020 and the Decision of the Court is binding on the parties.
The matter before the Court concerns a claim by the Union on behalf of five Railway Inspectors for payment of an on-call allowance. The Inspectors are required to participate in the on-call roster at a minimum of 1 in 10 weeks and a maximum of 1 in 6 weeks, to respond to railway accident notifications. When rostered they are on call from 3pm on a Friday until 3pm the following Friday. The Claimants do not receive an on-call allowance.
Historically, this grade was in receipt of such an allowance, however, it was suspended in 2010 due to the Government’s cost cutting measures during the recession, where many allowances were abolished for new public servants. The Employer submitted a business case for the retention of the on-call allowance to the Department of Public Expenditure and Reform (DPER). The response from the DPER was“Allowance - decision suspended”, this was followed up with an email from the Department of Transport who advised the Employer that the allowance should not be paid to new beneficiaries as DPER would be requiring further information on the allowances before coming to a final decision. That was in October 2012.
The Union submitted that in line with the sanction from DPER, the allowance should be paid to the Claimants who are all partaking in the on-call roster. It referred to the fact that Inspectors of the Railway Accident Investigation Unit (RAIU), who were formerly part of the Commission for Railway Regulation, and who were similarly treated by DPER when considering the retention of the on-call allowance, continue to retain the on-call allowance. The Union sought application of the on-call allowance with retrospection to 2015 and 2016, i.e. the relevant commencement dates of employment of the five Claimants involved in the claim before the Court.
The Employer rejected the claim, stating that the salary scale applicable to the Inspectors is inclusive of an on-call allowance and furthermore that it is not in a position to amend their terms and conditions without authorisation from the Minister for Transport and with the consent of the Minister for Finance. It contended that the position of the RAIU Inspectors was not comparable, as there are only 4 Inspectors in the latter and their on call/call-out requirements are more demanding that the Claimants’.
Having considered the submissions of both parties, the Court notes that the Claimants participate in the on-call roster as required. The employer accepts that the rationale for paying the allowance originally continues to apply and will continue into the future. The Employer informed the Court that nothing has changed to the reasoning given when it submitted its business case for its retention in 2012.
The Court notes that whether it is in relation to the Commission’s Principal Investigators who are in receipt of the allowance, or the comparator’s in RAUI, the fact that different salary scales apply does not change the fact that the on-call liability and the implications of being on-call is the same for all categories affected.
In all the circumstances of this case, the Court recommends in favour of the Union’s claim and recommends that the on-call allowance should apply to the Claimants with effect from 1stApril 2018.
The Court so Recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
15 March 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Louise Shally, Court Secretary.