Complainant

Respondent

Anonymised Parties

Local Authority worker

Local Authority

Representatives       

SIPTU                       

LGMA

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-00031913-001

31/10/2019

The worker commenced employment with the respondent approximately 28 years ago in the waste department. An agreement was conciliated by the LRC in 2013 to distribute rostered overtime hours between the staff within the newly created department in which the worker was assigned.

The employer failed to honour this agreement .

The union requests the Adjudicator to implement the terms of the LRC agreement of March 2013 and to compensate the worker   for the loss of the guaranteed overtime and on call for the period March 2013 -2015.

The worker’s representative rejected the employer’s assertion that it was a collective dispute. It is about one worker and the failure of the employer to apply an LRC 2013 agreement to him. There will be no knock-on effects in terms of future salary .

In 2013, the section in which the worker had worked for the previous 21 years was amalgamated with 5 other sections to create a new section, the "Public Realm"   department. An agreement conciliated by the LRC on the 11 March 2013 establishing the Public Realm promised that the remainder of the 13,000 cumulative hours of overtime for 2013 would be made available to all staff in the newly amalgamated section “ on a pooling basis”

The employer failed to implement the overtime provisions and the worker was denied overtime opportunities for 30 months. He was denied a further extension of the call -out which is nationally mandated at 4 hours at double time. The union made many efforts to remedy the situation, but the employer failed to adequately deal with the matter. Ultimately the employer did bring him and others equally, adversely affected workers on to the overtime roster in early 2015.  

The local union section representative stated that overtime was guaranteed.

The SIPTU Sector Organiser   emphasised that the claim was behalf of one individual only.

The union are seeking   compensation for the losses sustained by the worker . The losses are on -call standby rate of €80.61 for one week in 8 weeks over the 30 months during which they had the opportunity withheld from them which equals 7 times a year multiplied by 2.5 years- the period during which they were denied the on- call rate. In addition, they seek payment for 4 call outs per year over 30 months which equals 32 hours at double time by 2.5 years . The loss of on- call standby over 30 months amounts to € 1410. The denial of call outs amounts to € 1120.The total redress sought amounts to €2530.

Preliminary Point.

The respondent submits that this is a collective dispute and that section 13(2) of the Industrial Relations Act, 1969 deprives the Adjudicator of jurisdiction to hear the complaint. In support of this position the employer refers to ADJ 00008777 where the adjudicator decided that she did not have jurisdiction to address the worker’s claim which saw her seeking to withdraw from an Income Protection Policy. The trade union had not processed this through the normal collective negotiation process and an award in favour of that worker would have had impact for other employees. The respondent also refers to LCR AD 1386 Shannon Airport Authority v A Worker where identical complaints were lodged by several employees. The Labour Court upheld that Adjudicator’s recommendation that they had no jurisdiction to hear the individual complaints as they relate to a claim by a body of workers.

Without prejudice to the above preliminary point, the employer refers to their minute of a meeting of 1 February 2013 with the Union which predated the March 2013 LCR recommendation, and which referred to the establishment of the Public Realm and the changes in working conditions attendant on its establishment. The minute said, “ general principle that people wouldn’t lose out, but nothing concluded yet. The   Union were happy with that.”

The worker prior to the establishment of the new Public Realm section in 2013 was in a section where on -call arrangements did not operate and so he   was at no loss by not being on the on-call roster when he the Public Realm department came into being in 2013. The employer put a proposal to SIPTU in October 2013 which was a revision of the on-call arrangements in the Public Realm. This was not accepted. Throughout 2013 and 2014, however, the Union side declined all attempts to reach agreement and the existing rosters remained in place. After 18 months of discussions out of which no agreement emerged place the employer placed the worker and his colleagues on to the existing on call –roster for overtime in early 2015. The roster system did not change. This worker incurred no loss – he gained the on-call facility which he had not enjoyed previously.

The employer states that there is nothing in the LRC agreement about on call related to emergency call outs .All overtime, including on -call and on- call overtime is entirely voluntary and not in any way compulsory or contractual and is ad-hoc in nature. The overtime on- call roster is a voluntary weekly roster. The individual employee submits to go on the roster. This worker did not submit to go on the roster.

The employer undertook to supply the average number of overtime hours worked by those employees in the Public Realm department who like the complainant came within the ambit of the 2013 agreement but who unlike the complainant were provided with a distribution of the 13,000 overtime hours. The employer wrote subsequent to the hearing and advised that there was no benefit to providing a breakdown of the average hours worked by employees in the Public Realm as the worker ‘s complaint refers specifically to On- Call Allowance and On- Call Overtime therefore a breakdown of all overtime would not be relevant to the complaint.

The employer referred to LCR 19995 which found that voluntary overtime was not pensionable. The employer states that therefore no loss arises in terms of salary or future pension benefits where these allowances are not available to the worker.

The employer asks the Adjudicator to uphold their position.

Jurisdictional issue .

Jurisdiction to hear the dispute.

Section 13(2) of the Act of 1969 states

“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

ADJ 00008777, A Worker V an Employer is a decision which the employer  cites as being applicable to the instant dispute. That dispute concerned an individual trying to disapply a term of a union- management agreement and the trade union had not formally raised the matter with the management. Had that worker’s position   been upheld it could have had the effect changing the scheme for the entire workforce.

The Union’s written submission refers to other workers equally locked out of a portion of the 13,000 hours in 2013 and refers to a claim having been dealt with within the employment concerning the overtime   commitments in the March 2013 LRC agreement

At the hearing the union emphasised that the dispute concerns the failure of the employer to apply an agreement to one worker only .No case was made on behalf of any other worker.

I find that the dispute before me involves the non – application of an agreement to an individual worker.

The terms of the March 2013 LRC contained a commitment to distribute these 13,000 cumulative overtime hours amongst the staff employed in the newly formed Public Realm and included in this staff cohort was the worker. The employer ultimately implemented the LRC agreement in early 2015 and the worker was placed on the overtime roster. So, the only matter I have to address is whether its terms should be applied for the finite period March 2013 –2015. The employer has asked me to consider the fact that the worker incurred no losses and in fact gained by his admission to the on-call list in 2015, but the LRC March 2013 agreement does nor state that the equal distribution of the hours among staff in the Public Realm is only to be applied where a loss has been sustained. It is an unqualified commitment to share the overtime . The LRC agreement did not differentiate between those who previously benefited from overtime arrangements and those who had not.

The respondent refers to Labour Court decision LCR 19995 which dealt with compensation for loss of earnings arising from a new arrangement. The decision differentiated between rostered, predictable overtime which is contractual and pensionable and ad- hoc overtime which is voluntary and non-pensionable. The employer holds   that as is the case in the instant dispute, no loss arises for this worker’s pension as allowances for voluntary overtime are not pensionable and his pension will remain unaltered by the absence of overtime allowances. But again, the commitment to divide up the 13,000 overtime hours for 2013 was unconnected to any change in pension benefits.

I find that the loss of overtime hours was not wholly attributable to the actions of the employer and the protracted negotiations contributed to the lack of overtime hours for the worker.

I recommend that the employer pay the worker an amount equal to 75% of the average overtime   earnings awarded to his colleagues in the Public Realm department out of the pot of 13,000 hours for the period 11 March to 31 December 2013 which was the lifespan of the 13,000 hours.

I recommend that for the period 1 January up to the point in 2015 when he was placed on the on-call roster for overtime , the employer should pay the worker 60%of the average amount of overtime hours paid to his fellow workers, per month, in the Public Realm department.

The overtime hours to which I refer for March – December 2013 and for the period January 2014 –to the date on which he was placed on the roster in 2015 are to be paid at the normal overtime rates for normal overtime hours and are not to comprehend Emergency Call-out rates.

I recommend that the employer pay the worker an amount equal to 75% of the average overtime   earnings awarded to his colleagues in the Public Real Department out of the pot of 13,000 hours for the period 11 March to 31 December 2013 which was the lifespan of the 13,000 hours.

I recommend that for the period 1 January up to the point in 2015 when he was placed on the on-call roster for overtime , the employer should pay the worker 60%of the average amount of overtime hours paid to his fellow workers, per month, in the Public Realm department.

The overtime hours to which I refer for March – December 2013 and for the period January 2014 –to the date on which he was placed on the roster in 2015 are to be paid at the normal overtime rates for normal overtime hours and are not to comprehend Emergency Call-out rates.

Section 13(2).