FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : TUSLA - AND - FORSA DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. Removal Of Special Care Allowance
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Union in relation to the cessation of an allowance for staff. The 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 the 4th December 2018 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 9th May, 2019.
The following is the Recommendation of the Court:-
UNION’S ARGUMENTS:
3. 1. The Union states that the payment of the allowance for staff working in the unit has historical origins.
2. The Union contends that historically employees who worked in High Support Units received a 'high support allowance' in recognition of the challenging behaviours inherent in the client group accommodated in the units.
3. The Union proposes to retain the Unit Allowance for a period of 24 months followed by a review.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer states that as the Unit is no longer a secured one that the allowance is no longer payable.
2. The Employer states that the continued payment of the allowance to staff no longer working in a qualifying unit would be inappropriate and is a cost-increasing claim which is precluded in the context of Section 8.3.1 of the Public Service Stability Agreement.
3. The Employer has recognised that a loss of earnings may arise for staff and has confirmed that staff will be compensated in line with the nationally agreed compensatory mechanism for such loss of earnings.
RECOMMENDATION:
The Court has given careful consideration to the written and oral submissions of the parties.
The Court has been presented with submissions which conflict with each other in relation to matters of fact. This suggests that the parties’ own engagements prior to the hearing of the Court may not have been as robust and comprehensive as they might have been.
The Court is unable to determine that the employer, as a matter of practice, pays an allowance to compensate or otherwise reward staff in respect of the behaviour of clients or service users.
It is clear that the employer has historically paid an allowance to staff who are working in secure units. That matter is evidenced by the fact that the staff in such units, of which there were four at one time, all received the same allowance. The staff involved in this claim were paid such an allowance. The Unit in question ceased to be a secure unit in early 2019. The employer ceased payment of the allowance to these staff upon the alteration of the nature of the unit.
The Court cannot recommend the retention of an allowance paid in recognition of the secure nature of the unit beyond the period when the unit was a secure unit. Neither can the Court recommend payment of an allowance to staff based on the behaviour or potential behaviour of clients or service users where no evidence has been produced to support the contention that such allowances are paid as a matter of practice in the employment.
In all of the circumstances, the Court recommends that the allowance should cease from the date of cessation of operation of the unit as a secure unit and compensation in respect of loss of earnings should be paid to the staff concerned in accordance with the arrangements set out in the Public Service Stability Agreement.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Foley
CC______________________
27 May 2019Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ceola Cronin, Court Secretary.