Complainant

Respondent

Anonymised Parties

A local authority worker

A local authority

Representatives

Shane Lambert Impact Trade Union

Local Authority Management.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023542-001

26/11/2018

The Complainant commenced employment with the Respondent on 11th February 1980 and was appointed to his current position on 22nd May 2000.

This complaint was received by the Workplace Relations Commission on 26th November 2018.

The Complainant has been employed in with the Respondent since 1980, he was promoted to an assistant inspector in 1998 achieving a further promotion in 1999 to that of inspector on the establishment of the leakage section, a position he still holds presently.

The then Divisional Engineer, appointed the Complainant to position of Inspector in charge, with the understanding that there would be a requirement to work at least 1 night a week in order to supervise and assist outdoor crews on night work, an essential part of all aspects of leak detention.

However, as the section has evolved throughout the years, out of hours work has become a more regular feature of the role, with a combination or both reactionary (emergency or response work) combined with regular and scheduled maintenance type work.

The role is an outdoor role and not office based, clerical administration, with duties being assigned by the Divisional Engineer.

BACKGROUND DETAILS OF THE ISSUE

The Complainant has worked significant overtime throughout his tenure as Leakage Inspector. As stated night work was commonplace, including work between the hours of midnight and 8am (unsocial hours).

In November 2015, during an information meeting with his Trade Union Representative, the Complainant enquired as to what the appropriate rate payable for overtime worked through these unsocial hours. He was informed that double time was paid for work that commenced or continued, between the hours of midnight to 8am and also on Sunday, all other times were governed by the arrangements as per the Haddington Road Agreement (HRA) and the Council’s overtime policy previous to that. The Complainant’s union representative committed to look into the matter and revert to the Complainant.

Having made verbal enquiries regarding the above to HR in the Respondent organisation they responded stated that no changes had been made to the unsocial hours premium through the HRA and it should be paid at double time. They also stated that any errors or omissions in this regard would need to be addressed locally in the first instance. I, in turn responded to the Complainant by email of 11th November 2015, stating same.

I also obtained a copy of the Respondent’s overtime policy which had been effective from before the late 90’s. It verified the contention with regards to unsocial hours stating that for outdoor employees “All overtime that commences after midnight or continues after midnight is paid at double time”.

The Complainant stated he never received double time for unsocial hours (midnight to 8am) he did however receive it for hours worked on Sunday.

The Complainant made representations to his divisional engineer, at that time. He was informed that the matter would be looked into and a response would be forthcoming.

On 18th January, the Union representative followed up the issue on behalf of the member, with an email enquiring as to where the matter was currently at. A response was received confirming that they had been directed by HR to pay overtime at double time for hours worked between midnight and normal start of work as well as on Sundays. I also enquired as to whether the arrears owing would be determined and paid, I was informed that the arrears would be assimilated and those affected would get same in due course.

The Complainant was paid double time for unsocial hours (midnight to 8am) from that point on.

A new overtime policy was introduced effective from 9th May 2016 until further notice.

The Complainant followed up on 5th July 2016 by email and was informed that the matter would be look at in the autumn and the arrears calculated then.

Further representations were made through the Union representative to HR in November of that year whilst the Complainant followed up with local management in April 2017.

After further emails being sent by way of follow up a response was received by the line manager on 6th June 2017 informing the Complainant that he had sent a submission to HR regarding the underpayment of overtime. He further stated that he expected to have an update the following day and would revert once he had further information.

Further emails were sent to HR in July, August and October of that year seeking an update to the matter.

A response was received on 7th March 2018 setting out the Respondent’s position which was as follows: “double time for clerical grades and grades analogous to same (Inspector is analogous to clerical Grade VI) for overtime worked after midnight is only payable from the time the new overtime policy was introduced on 9th May 2016. This policy introduced the double time rate for salaried staff working after midnight”.

“When this policy was introduced on that date the Respondent took the opportunity to clear up the confusion about overtime rules for Clerical / Admin staff and Outdoor staff which was the description contained in previous overtime policies.   These descriptions are now replaced with the correct descriptions of Salaried and Waged staff”.

This did not make sense to the Union whilst it is accepted the inspector is analogous to a clerical grade VI for pay purpose, they have always been and remain an outdoor grade. The nature of the work is outdoor and not office based, they work a 39-hour week, are allocated 30 minutes for lunch and their overtime divisor is based on a 39-hour working week, where all clerical admin work a 37-hour week and their overtime divisor is calculated on same.

Equally this position came as a bolt out of the blue as to this point, there had been no question of any dispute regarding the claim.

In fact, it had been accepted without issue confirmed that overtime should be paid at double time for unsocial hours, committing to address any underpayment, they also carried out calculations on what was owing to the member retrospectively and sought sanction for payment.

This argument had never been put forward to the union before, nor had there been any question regarding the legitimacy of the claim.

Also of note, is that the position of the Respondent also appeared to be at odds with the fact that they commenced paying the Complainant double time in January 2016 when this matter was raised with them initially, some 4 months in advance of the new policy being introduced.

A period of local engagement followed, which sought clarity on the above and assessed if there was any potential to resolve this locally. This concluded on 26th October when an email issued from the Union to HR, informing them of our intention to refer the matter to the WRC for their consideration.

UNIONS ARGUMENTS, SUMMATION AND REDRESS

It is inconceivable that the Complainant is not an outdoor worker and as such was not covered by the arrangements governing unsocial hours in the previous overtime policy.   The Complainant’s duties, hours of work, overtime divisor and break entitlement are all reflective of that of an outdoor grade and not a clerical administrative worker, who works a 37 hour week (34 previous) who is office based. The Complainant’s role, requires that he work hours throughout the night, responding to issues in a manner that no clerical administrative worker would be required. His role is an outdoor role, in all weathers supervising and managing crews.

We respectfully request that the Adjudicator find in favour of our member that he is and always was an outdoor worker, we request a review of the members overtime payments for unsocial hours worked be carried out to determine as to what the value of any underpayment is. Following same we seek an open engagement with management with a view to reaching an agreement on resolution of same.

BACKGROUND TO COMPLAINANT’S CLAIM TO BE PAID RETROSPECTIVE OVERTIME FOR HOURS WORKED AFTER MIDNIGHT.

In 2016 the local authority reviewed its existing overtime policy and implemented the amended policy with effect from 9th May 2016. There was a further amended policy issued in April 2017 but the changes implemented then are not relevant to this case. The previous overtime policy was not dated but, from electronic files on record, it is believed it was in place from 2006.

The 2006 policy lacked clarity in certain aspects hence the need to amend the overtime policy in 2016. Specifically the 2006 policy did not differentiate between staff paid by Wages Section (operational staff of General Operative and Craft grades) and staff paid by Salaries Section (Clerical/Administrative staff and Operational staff at analogous grades). It used the terms “Clerical/Admin Staff” and “Outdoor Staff” which was inaccurate and to some extent misleading. This was so because there are certain grades where the staff would be generally working outdoor but which are analogous to Clerical/Admin grades and are treated in the same way as these grades for pay purposes.   Included in these grades are Inspector and Assistant Inspector. The case in question here relates to the Inspector grade which is analogous to the Grade VI Clerical/Administrative grade. Email of 7th March 2018 issued by the City Council to Forsa refers.

On the Wages side overtime is returned on timesheets sent by the local Timekeeper to Wages Section each fortnight. On the Salaries side an overtime claim form is filled out by the employee and certified as correct by the local Supervisor (an Engineer in this case).   The form is completed in exactly the same way as by Clerical/Administrative staff but the divisor for calculating the hourly rate is different due to historical reasons relating to the number of hours worked per week (Clerical/Administrative staff work a 36 or 37 hour week while operational staff work a 39 hour week).

The point being made here is that Inspectors, analogous to Clerical/Administrative Grade VI, are covered by the “Overtime Rates Clerical/Admin staff” section of the 2006 policy and not by the “Overtime calculations for Outdoor staff” section of the 2006 policy. This means that their overtime during the period when that policy was in place was paid on the following basis:

First hour             Free

Next 2 hours     time and a quarter

Next 5 hours      time and a half

Thereafter          double time

These calculations applied regardless of when the hours were worked. It has been checked with the 3 departments where working after midnight is likely to have occurred as referenced by the Trade Union ie. Water Division, Drainage Division and Housing Maintenance Division.   Confirmation has been received that it has always been the custom and practice in line with the 2006 overtime policy, that overtime payments for the grades analogous to Clerical/Administrative grades have been paid on the above basis up to 9th May 2016.   The new policy then introduced double time for hours worked after midnight for all staff. Under the 2006 policy only Wages staff were paid the double rate for hours worked after midnight. This demonstrates that it was accepted at all times that the Inspectors were governed by the overtime rules for Clerical/Administrative staff and not the rules for the Outdoor staff in the 2006 policy.

The above represented the continued implementation of a clarification issued by HR Department’s then Principal Officer in October 2000 confirming the overtime payment for Inspectors based on Department of the Environment Circular EL 1/89.

CASE MADE BY TRADE UNION IN THE APPLICATION TO THE WRC ON BEHALF OF COMPLAINANT

It is stated in the complaint specific details or statement section of the WRC application form that this issue related to the Complainant not receiving the appropriate rate of double time for overtime worked after midnight as per the Respondent’s overtime policy. As per the details provided above the rate for these hours prior to 9th May 2016 was not double time but whatever rate was applicable depending on the number of hours worked in any given week. This was calculated on the basis of the first hour free, next 2 hours at time and a quarter etc. This is as per the policy that was in place at the time.

It is further stated that “management initially conceded the error”. It is correct that the local Engineer in charge, on the basis of the Outdoor Staff description contained in the 2006 policy, mistakenly believed that overtime at double time should be paid retrospectively for hours worked after midnight prior to 9th May 2016. This was an error on his part-it does not occur that a Respondent’s policy introduced on a certain date has its terms and conditions applied retrospectively unless this is specifically stated in the policy.   The policy of 9th May 2016 clearly states that it is effective from that date and it is not reasonable that the Respondent could be expected to apply any or all of the terms and conditions prior to that date. When the issue of the Complainant’s retrospective claim for overtime was referred to the HR Department, the Engineer in charge was notified of his error and this was conveyed to the Complainant.

No claim was received seeking double time for Inspectors doing post-midnight overtime until the amended policy was introduced on 9th May 2016-if it was felt that this rate was payable on the basis of the Outdoor Staff description contained in the 2006 policy, a claim should have been lodged with the Respondent within the period of time when the 2006 policy was in place.

CONCLUSION

It is the Respondent’s position that the Complainant’s claim to have the terms and conditions introduced in the overtime policy of 9th May 2016 retrospectively applied to a period when a previous overtime policy was in place is totally without foundation. He has been paid the double time rate for post-midnight hours since that date.   He cannot expect to be paid this rate prior to 9th May 2016 in contravention of the overtime policy in place at the time which applied to him and all other Inspectors working overtime over the duration of the 2006 policy. To apply such a measure would be unprecedented and would allow for any number of knock-on claims on any amount of issues, not confined to financial claims but relating to any new conditions contained in the new overtime policy. The precedent that would be set in this case could then be sought to be applied to any other Respondent policy that might be reviewed or amended in the future.

Taken on its own this claim represents a cost increasing claim in the tens of thousands. If it was conceded to, there would be further claims from many other Inspectors leading to a cost increasing claim which would be a multiple of this. The Respondent is not in a position to pay for such claims.

It is respectfully requested, therefore, that the Complainant’s claim for retrospective payment of overtime monies claimed for working after midnight prior to 9th May 2016 is not upheld

It is not straightforward as to what course of action would be the correct course of action in this complaint. To some extent confusion is caused by a grey area between waged and salaried staff classifications e.g. an Inspector is analogous to a Clerical Grade VI.

Management make the point that the Complainant “cannot expect to be paid this rate prior to 9th May 2016 in contravention of the overtime policy in place at the time which applied to him and all other Inspectors working overtime over the duration of the 2006 policy.   To apply such a measure would be unprecedented and would allow for any number of knock-on claims on any amount of issues, not confined to financial claims but relating to any new conditions contained in the new overtime policy. The precedent that would be set in this case could then be sought to be applied to any other Respondent policy that might be reviewed or amended in the future.

The point being made here is that Inspectors, analogous to Clerical/Administrative Grade VI, are covered by the “Overtime Rates Clerical/Admin staff” section of the 2006 policy and not by the “Overtime calculations for Outdoor staff” section of the 2006 policy. This means that their overtime during the period when that policy was in place was paid on the following basis:

First hour             Free

Next 2 hours     time and a quarter

Next 5 hours      time and a half

Thereafter           double time

These calculations applied regardless of when the hours were worked. It has been checked with the 3 departments where working after midnight is likely to have occurred as referenced by the Trade Union. Confirmation has been received that it has always been the custom and practice in line with the 2006 overtime policy, that overtime payments for the grades analogous to Clerical/Administrative grades have been paid on the above basis up to 9th May 2016. The new policy then introduced double time for hours worked after midnight for all staff. Under the 2006 policy only Wages staff were paid the double rate for hours worked after midnight. This demonstrates that it was accepted at all times that the Inspectors were governed by the overtime rules for Clerical/Administrative staff and not the rules for the Outdoor staff in the 2006 policy.

I find it impossible to disagree with this line of thinking and it is for this reason that I recommend in favour of the Respondent and therefore the claim as presented by Fórsa on behalf of the Complainant is deemed to be not well founded.

As outlined above.