Complainant

Respondent

Anonymised Parties

A Worker

A Local Authority

Representatives

Thomas Murtagh, Forsa Trade Union

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-00034878-001

27/02/2020

The Worker is seeking compensation both in respect of the overtime he has lost as a result of the decision to outsource the overtime work that he had previously been doing and for the way he was treated by the Employer given their failure to consult with him and his union surrounding this decision.

The Worker stated that he had been paid overtime in respect of duties he fulfilled in one of the local authority’s parks for 14 years. This overtime was shared with another employee with both working 3 days and 4 days on alternate weeks. Despite having performed the overtime for such a significant period of time, the Worker was informed in April 2019 that all of this overtime would now be carried out by an outsourced provider. It was highlighted both that there was no consultation with either him or his union surrounding the decision to outsource the work he had carried out during his overtime and he also lost money as a result of this decision.

The Employer stated that the decision to outsource the tasks the Worker had carried out during his overtime had to be made for security reasons and that this resulted in an increased cost for the Employer.

The Employer also stated that following agreement with the group of unions representing workers in the Authority, a claim for compensation arising from the cessation of overtime would only be conceded if the overtime being ceased had no reasonable possibility of returning and/or no alternative overtime arrangements were in place. 

In this particular instance however, it was asserted that overtime has not ceased for the Worker as he can avail of overtime anywhere within his district. Specifically, each district has its own roster for overtime managed by a foreman and all staff members have the opportunity to opt on or off the roster.  Staff are initially offered overtime for the park they normally work in but they are also offered overtime within their district.  Staff can also work in other districts when requested and may also request overtime if they become aware of overtime opportunities.

When the Worker’s overtime ceased in May 2019 in the park where he had always worked, he therefore had the opportunity to work overtime in other areas of the district. It was highlighted in the tables below that he availed of such opportunities and that he was paid more overtime in the two calendar years after the decision to outsource the security in the park than he was in the two years before. 

The Employer stated that there continues to be overtime available in the district where the Worker is based and highlighted that given the reduction of staff numbers there, employees from another district have to be included on that district’s roster to make up the hours and ensure parks opening and closing are covered and maintained.  This shows there is a significant level of overtime available to the Worker.

The Employer also highlighted that even if it is found that the overtime ceased has no reasonable possibility of returning and/or no alternative overtime arrangements are in place, the Employer uses three specific criteria to see if the loss of earnings qualifies for the payment of compensation. This is a long standing way of buy-out of overtime and has been accepted by all Trade Unions associated with staff of the local authority.

The 3 criteria are:

·       That the overtime was regular and rostered

·       That the employee was required to work the overtime and was not in a position to turn it down

·       That it was of long standing i.e. that the employee had been doing the overtime for a period of three consecutive years or more at the time of cessation.

In relation to the Worker in the instant case, it was stated that:

·       The overtime was regular and rostered but this would vary on a week to week basis, depending on staff requirement and needs of the park.

·       The Worker was and continues to be in a position to turn down overtime.  The staff are placed on a roster but can also be offered overtime where it arises. 

·       It is acknowledged that the Worker had been in receipt of overtime in the park for more than three consecutive years at the time of the cessation of overtime in the park.

In making a recommendation on this case, I note firstly that it was not disputed between the parties that for an overtime claim to succeed, the overtime being ceased must have no reasonable possibility of returning and/or there are no alternative overtime arrangements in place.

It was also not disputed that the Worker has had the opportunity to avail of overtime work elsewhere in the district although the security in the park where he had carried out all of his work prior to May 2019 has been outsourced.

Given that

(i)                  the overtime has clearly not ceased for the Worker

(ii)                he has had the opportunity to avail of overtime work elsewhere in the district, as can be seen from the undisputed figures presented by the Employer in 2020 and 2021

(iii)              the decision to outsource the work was made for security reasons and that consultation would not have made any material difference

I cannot make a recommendation in favour of the Worker.  

I cannot make a recommendation in favour of the Worker for the reasons outlined above.

Overtime;