Worker

Employer

Anonymised Parties

State employee

Government Agency

Representatives

SIPTU

 Employer HR personnel

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001970

10/11/2023

This dispute concerns the failure of the employer to agree to pay an on- call standby allowance to the worker.

He is seeking payment of €75 per week or pro rata thereof to reflect his near 20 years of providing an on-call service to his employer without payment. This is the sum payable to general operative grades in the Local Authorities and in the Health Service.

The worker has been employed with the State agency since 1995.

He failed to reach an agreement at local level.

The worker has been employed as a general operative since 1995 on one of the employer’s sites.

 In pursuit of his claim for an on-call allowance, he points to the fact that the employer provided him with a mobile phone and required him to be available to deal with any emergencies such as alarm activations, fire risks or any other untoward events at the location. He was obliged to contact the relevant emergency services in such situations.

He provides janitorial type duties, maintaining the cleanliness and order of the facility. His duties also included checking the alarm system and organising for repairs to be undertaken as necessary, acting as a keyholder and in this way ensuring access to the facility as necessary for Gardai / Fire Brigade etc.

He had to respond to such alarms 2- 3 times a week in the first few years of his employment. He was called out 12-13 time per year in the last 5 years.

The employer refused to concede this claim

The worker relies on A Craft Worker v A Health Service Provider, ADJ-00022093, a decision which awarded an on-call allowance to the worker.

Contrary to what the employer asserts, the worker maintains that he does come within the definition of a worker as laid out in the Industrial Relations Acts, and that the Labour Court, while not finding in favour of workers in this workplace on their substantive complaints, did issue recommendations without reference to any jurisdictional impediment that might lie in the way of having their disputes investigated.

The worker seeks a favourable response to his claim from the WRC.

Preliminary Issue.

Jurisdiction to investigate the worker’s dispute.

The employer contends that the adjudicator does not have jurisdiction to hear this complaint as only workers encompassed by the definitions found in the Industrial Relations Acts 1946- 1990 are entitled to refer a dispute under the Act.

Section 4 of the Act of 1946 excluded from its jurisdiction

(a)         “a person who is employed by or under the State,”

The 1946 Act was subsequently repealed and the definition of “worker,” for the purpose of s.13 of the Industrial Relations Act 1969, is now provided at s.23(1) of the Act of 1990. It states

(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means a member of the Garda Síochána referred to in subsection (1A) and] any person aged 15 years or more who has entered into or works under (or, where the employment has ceased, worked under) a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include—

(a) a person who is employed by or under the State”,

The employer state agency comes within the remit of a Government Department and a Minister.

The employer argues that the above provisions deny jurisdiction to this dispute and worker.

Without prejudice to that position, the employer contests the eligibility of the worker to an on-call allowance as any cost increasing claims are prohibited by section 5.6.1 of the current Public Service Agreement, in force since 1 January 2024. It states

“The parties agree that no cost increasing claims for improvements in pay terms and

conditions of employment will be initiated or implemented for the duration of the

Agreement other than in accordance with the provisions of the Local Bargaining clause”.

Furthermore, no other colleague general operative of the worker in the same grade doing the same work is paid an on-call allowance. Like this worker, they are paid overtime on the occasions when they are actually called out and in accordance with their contract.

The employer asks the WRC to accept their position.

Preliminary Issue.

Jurisdiction to investigate this dispute.

I must decide if the employee is a “worker" within the definition contained in Section 23 of the Industrial Relations Act, 1990 and, thus, eligible to have his dispute investigated.

 This Act specifically excludes from the definition of worker in Section 23(1)(a) - a person who is employed by or under the state. The worker is employed in a state agency within the remit of a Government Department with a Minister in charge. His salary is paid by the state.

The worker asks me to accept that previous Labour Court Recommendations concerning the same employer and general operatives  are authority for and a de facto recognition of the fact that his status is that of a worker- a fact accepted by this employer. His dispute can be investigated

However, these Labour Court Recommendations address the time limit laid out in relevant workplace codes within which a referral must be made to the Labour Court and not actual jurisdiction. Unlike in this case, the matter of jurisdiction was not raised by the parties in these previous referrals to the Labour Court which did not address jurisdictional issues.  But in this instance, it has been put and must be answered.

A Craft Worker v A Health Service Provider, ADJ 00022093, cited by the complainant as authority for payment of an on-call allowance, recommended an allowance to a worker as he was entitled to benefit from all the terms and conditions associated within his grade.  The worker in the instant case is not aligned with a group of workers who enjoy an on-call allowance.

I can only find that the worker does not fall within the definition of worker in Section 23 of the Industrial Relations Act 1990.

Being excluded from that definition under Section 23(1)(a), I, therefore, must find that I do not have jurisdiction to investigate this dispute under section 13(2) of the Industrial Relations Act, 1969.

I recommend that the trade union explore agreed processes for addressing this issue.

Jurisdiction; state employee; definition of worker.