FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MAYO MENTAL HEALTH SERVICE - AND - A WORKER (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. ADJ-00023665 “Based on the conclusion that this is a collective issue with implications for other employees and the employment locally and possibly nationally, I do not have jurisdiction to recommend a resolution to this claim.” The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 25thFebruary 2020 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 19November 2020.
Section 23(d) provides:-
The Union on behalf of the Claimant submitted that these payments should apply in respect of the work carried out by the Claimant at weekends since March 2018, instead of the “B and C Factor” rates. The Adjudication Officer held that as the claim was a collective issue with implications for other employees and the employment locally and possibly nationally, she did not have jurisdiction to recommend a resolution to the claim. In her appeal the Union stated that the Claimant has been completing structured on-site attendance at weekends since March 2018 however, she has not received payment in accordance with the provision of the Consultants Contract. She has been paid B Factor but not the premium rates. She seeks payment for the time worked since March 2018, which she estimates is around €8,892. The Claimant maintained that the work she carries out at weekends is clinically necessary work and it's not emergency work. The Respondent disputed the claim and submitted that the matter in dispute is whether these hours are considered part of the normal on call service or are “Structured Overtime”. It submitted that the Service does not operate a structured weekend working rota. Structured overtime only arises where the employer has confirmed there is a requirement for structured on-site attendance in addition to the 39-hour week. In any event, the Respondent contended that the dispute relates to a national policy and is a collective grievance rather than an individual complaint. The Respondent stated that HSE Community Healthcare West does not operate a structured weekend working rota. It stated that none of the consultants are required to work additional structured hours beyond the contractual obligations, and an on-call rota is used to provide emergency cover at weekends and public holidays. It stated that the Claimant is entitled to be paid for work done when on call in accordance with C Factor rates, which she is entitled to claim for the period in question. Having considered the submissions of both sides the Court notes that it is not disputed that the Consultants’ Contract provides that a decision to introduce weekend working can only be made by management in accordance with Department of Health policy and that such a provision has been sought by the Claimant and her colleagues within the Service since October 2018. It is clear from the correspondence submitted that the matter has been the subject of review and consideration, however, as no requirement for it has been established at this time, management have not introduced it, therefore normal on-call or emergency cover arrangements apply. Taking into account the fact that structured overtime has not been introduced within the service as management are of the view that at the moment such working arrangements are not required, the Court concurs with the findings of the Adjudication Officer that this issue is a collective issue with implications for other employees and the employment locally and possibly nationally. Section 13(2) of the Industrial Relations Act, 1969 precludes the Adjudication Officer (and the Labour Court on appeal) from investigating a trade dispute that is connected with rates of pay or hours of work of a body of workers. Consequently, the Court similarly has no jurisdiction to adjudicate on the claim. Therefore, the Court must uphold the Recommendation of the Adjudication Officer and reject the Claimant’s appeal. The Court so Decides.
NOTE Enquiries concerning this Decision should be addressed to Noel Jordan, Court Secretary. |
