LCR23097

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Recommendation No's: ADJ-00048666 (CA-00059908)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 27 August 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.   On 14/08/2024 the Adjudication Officer issued the following Recommendation:      

“I 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.’’

A Labour Court hearing took place on 10 January 2025.

DECISION:

Background to the Appeal

This matter was appealed by the Worker from a Recommendation of an Adjudication Officer (ADJ-00048666, dated 14 August 2024) under the Industrial Relations Act 1969.

Notice of Appeal was received in the Court on 27 August 2024.

The Court heard the appeal in Dublin on 10 January 2025.

The Factual Background

The Worker was employed by the Office of Public Works (‘the Employer’) in a General Operative grade between 3 July 1995 and his retirement on 11 December 2023. Throughout that period, he worked as a Caretaker at the Corlea Trackway Exhibition Centre (‘the Centre’), Co. Longford.

He was a key holder for the Centre and was the initial point of contact for all out-of-hours issues such as alarm activations at the Centre. Pursuant to a nationally agreed arrangement, he received a minimum payment of three hours’ overtime on each occasion he attended a call-out.

The Employer installed a telephone line in the Worker’s residence in 1996 or 1997 to facilitate this arrangement.

The Dispute

The Worker referred the within claim, through his Union, to the Workplace Relations Commission on 10 November 2023. In his originating complaint form the dispute was outlined as follows:

“As the sole employee that works year round Mr [X] is the only one on site in the Winter months. Mr [X’s] hours are 39 hours per week, as the sole year round staff member and caretaker Mr [x] is expected to answer and respond to calls for both the fire alarm and burglar alarm, further as the main key holder and there is nobody else on callout. When Mr [X] is called out to respond to an alarm he received 3 hours pay at double time. SIPTU engaged with OPW seeking retrospective payment of an “on-call standby allowance" for Mr [X] for his being on stand-by for callouts. The matter was not resolved at local level despite discussions. As such Mr [X] [is] seeking adjudication on the outstanding issue of payment of an “on-call standby allowance” for Mr [X].”

The Worker’s Representative informed the Court that he is seeking retrospective payment of an on-call allowance for the entire period for which the Worker submits he was on-call. He values the claim, therefore, at €25,000.00.

Submissions

The Worker submits that he was under an ongoing obligation to be on stand-by to deal with all call outs from the date on which the Employer installed the telephone in his residence. He further submits that he, therefore, had to place his “personal/private life on hold”, other than when he was on annual leave, between 1996/97 and 2023.

The Employer submits that the call-out arrangement that applied to the Worker is that which applies across all its sites nationally and has been collectively agreed with the trade unions. It further submits that it does not pay an on-call allowance to any of its employees. The Employer’s representative told the Court that there was never any obligation on the Worker to make himself available for call outs, that he opted to do so voluntarily and that no sanction was imposed on him (or any other Worker) if he was not available to deal with a call-out.

Finally, it is submitted on behalf of the Employer that the within claim is cost-increasing in nature and, therefore, contrary to the current Public Service Agreement.

Discussion and Decision

The Court notes that a meeting took place on 5 October 2018 (at which the Worker was accompanied by his trade union representative) to discuss the Worker’s working hours and working arrangements generally. The minutes of this meeting were furnished to the Court.

The Worker said he hadn’t seen the minutes prior to the within hearing.

He did not, however, dispute the contents of the minutes which include the following paragraph regarding the call-out arrangements:

“[X] also stated that he was on constant call-out, and he would get called out any time during the night if the alarm went off in the centre. He stated that the Gardaí would not attend a call if no OPW employee is with them after 3 call outs. He stated he could not have a drink in case he was called out. He was informed that he was under no obligation to attend call outs, and that if he was, he was paid an overtime rate (3 hours at double or time and a half) and it was optional. It was explained to him that this was the case across the Trim District.”

The Court is of the view that the Worker could not have been under any misunderstanding from the date of the aforementioned meeting onwards in relation to the arrangements that applied to call outs.

 He was free to make himself available or not to deal with any individual call out. If did make himself available, he received payment of three hours’ overtime. If he was unable to make himself available, that was the end of the matter as far as he was concerned and he was certainly not liable to be sanctioned in any way as a result. It is also common case between the Parties that this arrangement applies to all call out situations across all sites operated by the Employer and that the Employer does not pay a call out allowance to any of its employees.

Undoubtedly, the concession of the within claim would have repercussive effect, would be cost-increasing and contrary to the Public Service Agreement.

Having regard to the foregoing, the Court does not recommend concession of the within claim.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
AL	______________________
13th January 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Amy Leonard, Court Secretary.