Worker

Employer

Anonymised Parties

Social Care Worker

Charity

Representatives

SIPTU

Ibec

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00033827-002

16/01/2020

The Worker is employed by the Employer organisation as a Social Care Worker.  She alleges that the Employer is requiring her to work nights in contravention of her contract.  The Employer disputes the allegation and maintains that the Worker’s contract requires her to work nights.

The Worker contends that the Employer made a unilateral change to her contract of employment by rostering her for rolling night duty and as relief staff.  The Worker contends that her hours of work are well established and working rolling or relief night duties are not included in her contract. 

The Worker submits that her Social Care Worker Contract of Employment was issued in 2017.  One of the Employer’s community houses was only opening up and the Employer required a Social Care Worker.  The Worker contends that she was contacted by telephone by HR and the Person-in-Charge of the community house and asked if she would take on the role of Permanent Social Care Worker.  The Worker asserts that she was not taken off the Relief Social Care Worker Panel as stated by the Employer. The Worker contends that she has a different Contract of Employment to those who were recruited subsequent to her and that her contract does not require her to work nights.

The Worker provided the hearing with a copy of a letter from the Person-in-Charge in the community house in which she worked dated 24 October 2019 in which the Person-in-Charge wrote that it was her understanding that the Worker had a day contract; had facilitated the smooth transfer of patients to the community house by working some night duty and that she would return to her contracted established hours once this task was completed.

The Employer organisation is a charity which provides residential services for children with intellectual disabilities within a regional catchment.  The Employer has undergone significant changes in service delivery as it has moved from a congregated campus style setting to providing community-based supports. 

The Employer commenced a process of reconfiguring its services in 2016.  This included, for a large part, the decongregation of its services from on campus to community living.  This process took several years with elements still being finalised to this day.

Following numerous meetings between management and representatives of SIPTU, Forsa and INMO at local level, at conciliation under the auspices of the WRC and in the Labour Court, an agreement was reached between all parties.  Part of that agreement included some staff moving to the HSE.  Another part of that agreement involved some staff being red circled with day only or night only work.  It was agreed with the unions that this cohort would be the only staff on permanent days or nights only.  A total of 33 staff, the absolute maximum number the service could accommodate, were agreed between the parties.  These 33 staff were a mix of nursing and care, male and female.  Any increase beyond that would create serious restrictions on the ability to roster staff as well as having a negative impact on the services provided.

The changes made to the service provided to individuals with disabilities, moving away from a campus environment to a community setting, has led to an increase in the demands for night staff.  Prior to the commencement of decongregation, only 16 staff would be required to complete night duty.  Now, with 33 homes in the community, there are 35 staff on night duty every night.

The Worker has previously undertaken night work.  Any changes to her roster were as a result of a significant change to the structure of the Employer organisation and were conducted with the full cooperation of all unions involved; namely SIPTU, INMO and Forsa and were fully compliant with the Worker’s terms and conditions of employment and job description.

The Worker commenced working on a 30.50 hours per week contract on 26 April 2017.  This followed an internal recruitment campaign.  The advertisement for these hours’ states, at ‘Contract Type’: “Relief hours based on a 39-hour working week, including days, nights & weekends.”

A meeting was arranged with the Worker on 14 October 2019 to discuss her issues with her working hours.  At this meeting the Worker contended that her contract was only for day hours.  The HR Officer clarified that no such contracts were issued to staff as the service operates 24 hours a day, 7 days a week.

Following a meeting on 5 November 2019, the HR Officer wrote to the Worker on 14 November 2019 in response to the Worker’s contention that she was employed on a day only contract.  In her letter the HR Officer advised the Worker as follows:

“One area that you feel fulfils your argument, is on the basis that your work consisted primarily of days in the past and that in your opinion, your role through practice has become in essence, and ‘day’ role.  However based on principles of de-congregation and Haddington Road agreement one of the key planks of this agreement is a reinstatement of the ongoing commitment to reform and transformation of how public services are delivered.  This agreement involves a recommitment to and extension of the HRA flexibilities and a strengthening of the mechanisms designed to facilitate change and reform the public services.

Section 3.3.1 is particularly relevant to the issue of rostering where it states ‘enhance productivity and service by improving work practices, as provided for in the Public Services Agreement 2010-2014 and the Public Service Agreement 2013-2016, including changes to rosters, flexible attendance patterns to meet service demands and public needs, better use of technology including e-rostering, cross-stream reporting, team-based working and changing skill mixes.

 [The Employer] must maintain a safe level of staffing at all times across 24-hours service-wide; this necessitates the majority of the workforce working both days and nights.  

The Employer is a day and residential service provider to people with disabilities which operates 24 hours a day, 7 days a week.  The service does not issue ‘day only’ contracts to anyone.

The Worker has a pattern of working nights on a regular basis.  In 2017 she worked 283.15 hours, or 9.29 weeks; in 2018 she worked 283.45 hours, or 9.31 weeks.  These exceed the ‘1 fortnight a year’ contained in her complaint form. 

The working arrangements in the Employer organisation have been arrived at after lengthy negotiations between management and unions (including the Worker’s union SIPTU) which necessitated the involvement of both the WRC and the Labour Court. 

As a result of these negotiations, 33 of the Employer’s staff were issued with a day only contract on a personal-to-holder basis.  All other staff, including the Complainant, are required to work a 24/7 roster.  I note that 11 other members of staff have been issued with the same contract as the contract that was issued to the Worker.

I am of the view that the Worker is asking me to make a finding which, if I were to find in her favour, would disturb the terms of a collective agreement.

Section 13(2) of the Industrial Relations Act 1969 provides a statutory restriction on the types of cases Adjudicators may hear. They may not investigate disputes connected with rates of pay, hours or times of work or annual holidays of a body of workers.

“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.”

Accordingly, I find that I do not have the jurisdiction to deal with this matter.

I do not recommend in favour of the Worker.

Collective agreement – no jurisdiction