Worker

Employer

Anonymised Parties

A Curator

A local Authority

Representatives

David Curtin ,SIPTU

 Louise Manley, HR Manager

Act

Dispute Reference No.CA-00053141-001

Date of Receipt

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

IR - SC - 00000734

06/10/2022

On 6 October 2022, the Union submitted details of a Trade Dispute on behalf of their member, a Curator. The Union raised the nonpayment of a “weekend allowance “and sought an investigation. Written submissions were received prehearing on 30 June 2023.

The Employer in the case is a Local Authority and has rejected the claim. Written submissions were also received prehearing on 30 June 2023.

At the conclusion of the hearing, I requested the following documents from the parties.

1 copy of the supplementary agreement

2 details of cessation of the weekend allowance by circular

3 details of the reference to the 9 March 2000 records (personal information on others redacted)

4 details of how the allowance was assessed in the DPER 2012 round.

In response, I received a copy of Circular EL02/83 which confirmed the origin of the allowance and explained that access to the allowance was contingent on a senior manager identification of need for attendance.

I did not receive a copy of the requested supplementary agreement. I received a diary extract from 2000 on the attendance of a HR Practitioner on X site. I also received post hearing declarations from former workers which were not canvassed at hearing. The Union will appreciate that I did not request these, and it was open to the Union to include these supporters on the delegation for hearing.

The Worker has been employed at the Local Authority since January 2006 and was appointed to his current role as a “Shift Curator “one of 12 such positions  in 2019.

The dispute centres on the nonpayment of a “weekend allowance “which the worker understood was to be paid consistent with his change of role as it was universally paid to the grade.

The Union outlined that the worker was due to assume a “new 3-person shift” on his appointment, which did not materialise.

8 am to 4pm and /0r 4pm to midnight   and 8 am to 4pm Sundays

When the worker finished his training, he was informed that the “old shift pattern “would prevail.

Weekend presence

80 km line cover on high activity levels

All bank holidays.

The worker has been denied the weekend allowance, which is superannuable.

The worker addressed the situation of nonpayment with his line manager and was informed that it would be resolved.

This did not come to pass.

The matter comes to the WRC following exhaustion of local discussions .

The Union submitted some dairy notes from March 2000 which reflected the presence of a Human Resource practitioner on site . The worker contended that this record signified the date that the week end allowance was  sanctioned on that site and he had no memory of a cessation .

The employer operates a Local Authority and has confirmed the Worker was appointed to the position of “X Shift worker “working a shift pattern, on a shift roster from November 19, 2019.

The Employer has rejected the claim for payment of weekend allowance and confirmed that the worker has been paid his contractual salary (10-point scale) which is fully inclusive.

The Employer understands that those two previous shift workers received the allowance on a personal to holder basis.

At hearing, the Employer confirmed that this allowance was now extinct.

The Employer referenced the 19 August 2020 grievance outcome where the Local Authority had sought to resolve a number of issues with the worker.

1 The salary was paid on 40 hr/ 7 days (regular curator)

2 X Shift curator carried a higher salary for a 39-hr week and was a composite rate inclusive of evenings and weekends.

3 Overtime paid over 39 hr week. There is also one in 3 Sunday commitment covered by overtime.

The Employer distinguished the Weekend allowance €82.01, paid to water curators who work part of their 40-hr week on Saturday / Sunday (36hrs during week, 4 hrs weekend) without premium or overtime.

The Employer submitted a Circular which referenced the origin of this allowance from 1983.

Following a retirement in the grouping of X Shift workers, the local Authority reduced the shift pattern to a new 2-person shift. Additional overtime followed until the third person was recruited and the three-person cover was eventually restored. The Local Authority was mindful of the workers full co operation with that period of change.

Discussions continued between the parties and peripheral matters on separate allowances were resolved. However, while the parties had meaningful engagements, the issue of the weekend allowance at X site for the worker was unresolved.

The Employer contended:

The weekend allowance is paid in the absence of premia earnings for weekend work.

The worker received the X Shift worker rate, which incorporates a shift premium.

The local authority has sought to reach a compromise with the worker on the additional overtime worked, but this has not been accepted.

None of the 10 other Local Authority shift curators receive this weekend allowance.

The claim for weekend allowance must fail.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties.

I am conscious that this is a live and busy working relationship. I reminded the parties that it was open to both parties to resolve this dispute at any time before I issued my Recommendation. I have not been informed of any such compromise.

The weekend allowance:

To begin, this is a claim by one worker, supported by the Union for access to a weekend allowance, which is paid to his colleague at X site.

The Employer says that there is no basis to the claim as the allowance claimed no longer exists and has been overtaken by a “fully inclusive salary “. The remnant recipient has retained the allowance on a red circled basis.

The Employer expanded on this response by introducing me to two types of curators amongst the 12 posts county wide. There are two different pay scales. One post has a weekend commitment built in, one does not. the Worker is in the first category.

 Only 1 of the shift curators receives the allowance on a red circled basis.

I probed this with both parties and wanted to know when the allowance was born, how long had it lived and when it had departed the scene. In particular, I wanted to know if it had survived the DPER 2012 review of all statutory allowances?

I asked those questions in the full awareness that no agreement is immutable, but I really wanted to follow what had happened.

I wanted to know if the parties had concluded any agreement so as to put the weekend allowance out of reach of a claimant.

I have read EL02/83 very carefully to help me understand the climate of rationalisation in which it emerged in 1983. I understand where the Circular fits in this case. I thank the Employer for that clarity.

I asked the Union on a number of occasions whether the weekend allowance had been negotiated away and was informed that it was not extinct.

 I had to consider both the job profile and the contract in this case. While remuneration was described as “the wages shall be fully inclusive and shall as determined from time to time “I found this an incongruous and ambiguous statement “

I could not find any record of an agreement between the parties which subsumed premia earnings into a composite salary and yet that was the salary that was paid.

I did spend some time on this at hearing and learned that this employment hosts a number of tiered allowances, all of which I wanted to grasp a comprehension of as I found a certain overlap.

The tiers of allowances paid in this instance are not strictly before me, but they are relevant context and background in the case.

Based on my investigation of the weekend allowance and the only Circular governing it, I must conclude that the weekend allowance remains an emolument within the Local Authority as I have not been provided with a record of its cessation or inclusion in a transmutation in a new Agreement.

Does the Worker have a rightful claim to the weekend allowance?

It is clear to me that the contract of employment signed by the worker reflected a clause of “fully inclusive “This is generic term, not explained. The Employer has confirmed that it covers premia earnings through roster. (Shift agreement)

 However, this is not an accurate reflection of the wages received by the worker as he retains access, to overtime in a number of instances, and a number of work specific pay benefits per annum.

The Unions case rests on a historical recollection of an onsite Agreement in March 2000 that the Local Authority agreed to cover those who worked there with the weekend allowance.

The Employers doesn’t dispute this occurrence but qualified that the recipients prior to the workers appointment in late 2019 retained this allowance on a red circled basis which could not be re-opened.

Added to this, I learned about a period of instability where the circumstances of a 2-person shift operation highlighted on the contract on appointment did not materialise on the workers appointment to the role. Instead, the worker appears to have worked a considerable period of time to offer brinkmanship until the stability of a 3-person shift was restored. He received overtime for this.

I fully understand that the employer has been seeking to make a full and final agreement with the Union on this residual matter, but the Union has not accepted the offer.

I did request a copy of the Supplementary Agreement but did not receive this.

However, it is in the conversations early on in the appointment, raised through the Union that anchors his workers claim to the weekend allowance. He told the hearing that he was informed that he would be paid the allowance pending a geographical change process.

He described a legitimate expectation of securing the superannuable allowance and expressed a dismay at the time frame before he was informed that he wasn’t going to receive it.

The Employer did not challenge this recollection but contended that the parties were bound by the contractual terms to reflect the actual work pattern, which paid for weekend attendance through composite premia and alternatively overtime. The occurrence overtook anything else.

I have reflected on both parties’ positions, and I will feedback to the parties that this is a difficult dispute to try to resolve.

I realise that this is a 7-day employment with a Saturday and Sunday commitment in the roster. This distinguishes it from the Curator role for which weekend working is paid additional to the weekend allowance. The salary is paid amidst a tier of other allowances which for me dispel the “fully inclusive “description.

This issue has reached an impasse at base and the goodwill generated from the efforts of brinkmanship is in danger of evaporation if this matter is not resolved with respect for both parties’ positions.

I have found merit in this dispute.

Allowance and retrospection