LCR22414

1.Claim for 1) An On-Call Allowance and 2) Removal of Regular Rostered Overtime.

BACKGROUND:

2.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 29 January 2021 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place in a virtual setting on 8 April, 2021.



UNION’S ARGUMENTS:

3. 1. The Union contend that the availability / on call allowance should be paid retrospectively for all years the complainants were available and providing on call services.

2. The Union contends that the regular and rostered overtime should not have been ceased unilaterally and the amounts due should be restored from the cessation date.

3. The Union request that Management must consult with the Union with a view to reaching agreement on the regular and rostered overtime.

EMPLOYER'S ARGUMENTS:

4. 1. The Employer states it has no requirement for a formal on-call arrangement in relation to leak detection where only sporadic unplanned intervention is required, and an informal voluntary arrangement suffices. It is also the case that the numbers so not meet the level set in the Circular with regard to on-call and there was no formal on-call agreement in place during the period.

2. The Employer states they have offered to compensate the employees for the loss of regular rostered overtime using the established formula and had no requirement for the work to continue due to the change from manual to automated meter readings.

3. The Employer asks the Court to reject the Union claim in relation to both on-call in relation to the retrospective element and in respect of the claim that this be implemented going forward.

RECOMMENDATION:

Background to the Dispute

There are two matters at issue in the within dispute. Both Workers – employed as Water Conservation Caretakers (Grade V) by Kilkenny County Council (‘the Council’) – are seeking retrospective payment of an on-call availability allowance and are also challenging the Council’s decision to cease regular and rostered overtime payments to them.

Availability Allowance

The Workers submit that they have made themselves available to deal with numerous out-of-hours contingencies, as required under their contracts of employment. Worker A has been doing so since 2014; Worker B, since 2017. They are claiming payment of an allowance equivalent to that paid by the Council to craft workers and Supervisors (i.e. four hours’ pay per week plus four hours’ double-time per call out) retrospectively to the date on which they respectively commenced on-call work. The Workers estimate the amount due to them to be €4,400.00 per annum per Worker.

The Council submits that is has no requirement for an on-call rota for Water Conservation Caretakers in circumstances where a voluntary overtime system has operated for a number of years. It is also submits that the overtime in question does not meet the requirements of Circular EL 06/2012 in relation to the minimum call out numbers for consideration of a formal on-call rota. The Council further submits that most leak detection work can be performed during normal working hours and does not require immediate intervention and the very low requirement for such immediate intervention does not in itself amount to justification for the Council to create a formal on-call roster.

Cessation of Regular and Rostered Overtime

The Workers submit that they had been in receipt of regular and rostered overtime from 2017 until the Council took a unilateral decision to cease this in circa March 2020. Worker A submits that he has lost overtime to the value of approximately €7,920.00 as a consequence; Worker B claims a loss of approximately €3,960.00.

The Council accepts that that a number of water meters were read by the Workers outside normal working hours, resulting in regular rostered overtime from early 2017 onwards. The meters in question could not be read during the daytime because of health and safety issues. It is the Council’s submission, however, that the meters in question are now automated and, therefore, there is no longer a requirement to read them manually. The Council acknowledges that the Workers have incurred a loss of earnings as a result and has offered to compensate the Workers at 1.5 times their annual loss, using the established compensation formula.

Recommendation

The Court upholds both elements of the claim advanced on behalf of the Workers. Firstly, the Court recommends that each Worker be compensated at a rate of €2,000.00 per annum for each year during which he provided on-call services. Secondly, the Court recommends that the Workers accept the Council’s offer to compensate them at 1.5 times their annual loss for the cessation of regular and rostered overtime. This element of the compensation to be based on each Worker’s relevant overtime earnings in 2017.

The Court so recommends.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
31 May 2021	Deputy Chairman