FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : NATIONAL MATERNITY HOSPITL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - 3 CRAFTSMEN NMH (REPRESENTED BY CONNECT) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Stand-by Payment
BACKGROUND:
2. This dispute concerns an on-call/stand-by payment allowance applied to 3 employees. 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 the 13 December 2019, in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 13 February 2020.
UNION'S ARGUMENTS:
3. 1. New entrants were told that they had to cover emergency on-call as per their contract of employment. The new craft workers are entitled to be treated with the same respect as their former colleagues.
2. The Union claims thatif Management do not want the previous local Emergency on-call Agreement, the Hospital will have to have 3 Craft Trades on Stand-by (3 stand-by payments) each week.
3.The Union says that such an arrangement will impact on their members' work/life balance and that Hospital Management will have to increase the Craft Manning Levels, immediately.
EMPLOYER'S ARGUMENTS:
4. 1. It is not a requirement that the 3 claimants be on the stand-by roster. They can come off this arrangement if they wish to giving the Hospital reasonable notice to put an alternative arrangement in place.
2. The double allowance is a red-circled arrangement.
3. The Hospital must follow HSE pay policy and is also bound by the terms of the Public Service Stability Agreement. No cost increasing claim for improvements in pay can be made during the course of this Agreement.
RECOMMENDATION:
The Court has given very careful consideration to the written and oral submissions of the parties.
It is common case that a local agreement was reached at least 20 years ago which provided for the craftsperson on call to receive a double standby payment on the weeks he or she was on standby. The employer asserts that this was a ‘red circled’ arrangement specific to the three craftspersons in employment at the time. The Union asserts that the double payment has applied to at least one other person who came onto the roster in the meantime and in any event submitted that it had no understanding that the local agreement contained any element of red-circling.
The Court has been unable to resolve the question of whether the long-standing local agreement was red circled to three named individuals or whether it was a general agreement applying to all craftspersons who might come onto the roster. In the Court’s experience, where a red circling arrangement is agreed to be in place and which, by definition, must apply only to named individuals, the knowledge of the fact of the red circling arrangement is shared between the parties to the agreement.
In any event, it is common case that a further local agreement was reached in 2016 whereby craftspersons agreed to participate on the standby roster on the basis of receiving a single standby payment on the weeks when they were on standby. The employer submitted that the craftspersons who reached the local agreement in 2016 were aware that one remaining craftsperson in employment since the conclusion of the earlier agreement was in receipt of the double standby payment. That submission of the employer was not disputed at the hearing by the Union.
In all of the circumstances, and noting in particular that (a) the most recent local agreement was concluded in 2016 and its terms are being applied by the employer, and (b) participation on the standby roster is voluntary, the Court cannot support the claim of the Trade Union for the application of the terms of the earlier agreement to staff currently on the standby roster.
The Court does not recommend concession of the Union claim.
Signed on behalf of the Labour Court
Kevin Foley
CC______________________
26 February 2020Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ceola Cronin, Court Secretary.