LCR23020

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043464 (CA-00054190-001 (IR-C00000946).

BACKGROUND:

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 29 September 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969. On 23 August 2023 the Adjudication Officer issued the following Recommendation:

“Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

(a) That the Hospital acknowledge that the Worker’ terms and conditions of employment should have been and now are covered by the Agreement.

(b) That the Hospital make a lump-sum payment to the Worker of €14,000 within 28 days of this recommendation by way of back-pay (and thus subject to tax) representing losses sustained as a result of the anomaly.

(c) That arrangements be made by the Hospital within 28 days of this recommendation to amend the Worker’ s pay and conditions insofar as possible, to bring the same into line with the Agreement.

(d) That the Hospital would engage with the Worker and/or his Trade Union or other advisors if and to the extent necessary, to ensure that all payments made on foot of this recommendation are tax efficient and in compliance with all existing Hospital payroll regulations.’’

Labour Court hearings took place on 17 April 2024 in a physical setting and 22 July 2024 in a virtual setting.

DECISION:

The Court convened a hearing in this appeal in April 2024 and adjourned that hearing with an agreement that both parties would provide further and better submissions. This occurred and a second hearing was convened.

The Court has carefully considered the written and oral submissions of the parties.

The fundamental facts of the matter are that:

• An agreement was concluded in July 2021 between the employer and a small number of named pool porters. That agreement provided for a re-structuring of pool porters’ rosters and working patterns. The named workers were “red-circled” on certain terms and conditions and a compensatory lump sum was paid to each of the named workers. The Claimant before the Court, who was a night theatre porter at the time of the hearings of the Court (but who had at various stages been a temporary relief pool Porter, a permanent full time relief porter and a theatre porter) was not one of the workers named in the 2021 agreement and no “red-circling” of any of his terms and conditions was agreed in his case.
• The Claimant before the Court has worked overtime and continues to do so, and all hours worked by him in excess of 39 hours per week have been paid for at the appropriate rate, including those hours worked above 39 hours per week worked on a Saturday or a Sunday.

The claim before the Court is a claim that (a) the 2021 agreement dealing with named workers and the “red-circling” of certain of their terms and conditions of employment should be opened up so as to include the Claimant, (b) retrospection should be paid to him as if he had been included in the 2021 agreement, and (c) the lump sum paid to the workers covered by the agreement at the time should now also be paid to the Claimant.

The Court is aware that the concept of “red-circling” is a common and often essential feature of the effective conduct of industrial and employment relations as change occurs in an employment. It is long established that such agreements, when concluded, are not the basis for sustainable comparator or “follow-on” claims.

In all the circumstances of this matter, and noting that it is common case that the worker has been paid at the appropriate rate for all hours worked by him over 39 hours per week, the Court cannot recommend concession of the claims before the Court on appeal.

The recommendation of the Adjudication Officer should be set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
TH	______________________
30 July 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.