LCR22032

FULL RECOMMENDATION CD/19/88 RECOMMENDATION NO. LCR22032 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CLANCOURT MANAGEMENT UNLIMITED COMPANY T/A CLANCOURT MANAGEMENT - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Ms Treacy

SUBJECT:
1. On-Call Policy.


BACKGROUND:

2. The case before the Court concerns a dispute between the Employer and the Union on behalf of 14 of its members employed by the Company. The dispute relates specifically to the Union's claim for the implementation of an on-call policy which encompasses an increase of the current on-call allowance, appropriate car insurance and mileage rates applicable to officers who perform on-call duties. The Employer rejects the Union's claim, arguing that its staff are adequately remunerated while carrying out on-call tasks. Furthermore, the Employer maintains that there is no contractual obligation to own or have the use of a motor vehicle to attend at work. Accordingly, there is no basis for the payment of car insurance allowance and mileage rates.

On the 25th February, 2019 the Union referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 21st May, 2019.

The Union agreed to be bound by the Court’s Recommendation.




UNION'S ARGUMENTS:

3. 1. The Union contends that there is no on-call policy in operation in the Company.

2. The Union is seeking the implementation of an on-call policy to include a number of enhancements to current terms and conditions of employment.




EMPLOYER'S ARGUMENTS:

4. 1. The Employer asserts that the changes to terms and conditions of employment encompassed in this claim are written clearly into the contract of employment of each staff member.

2. The Employer maintains that staff are remunerated appropriately for on-call duties and it is not in a position to concede the Union's claim for car insurance or mileage rates as there is no obligation on its staff to use a motor vehicle to carry out on-call tasks when required to do so.





RECOMMENDATION :

This dispute concerns the terms and conditions under which fourteen security/maintenance officers (‘the Workers’) employed by Clancourt Management Unlimited Company (‘the Company) at the Crescent Shopping Centre, Limerick, perform on-call duties.

The Workers operate a six-week cycle shift which includes an on-call week once in every twelve weeks. They do not receive an on-call allowance for this but are paid two hours overtime at the appropriate rate if called to attend the premises between 11.30 p.m. and 6.45 a.m. the following morning. The Company has not formalised its on-call policy in writing although it issued a revised and comprehensive employee handbook in December 2018.

There is a number of elements to the claim being advanced by the Union on behalf of its members. The Union is seeking the introduction of a comprehensive written on-call policy that includes each of the following:

• • On-call allowance of €300.00 per week plus call-out fee of €50.00 to be paid for the first call-out with all subsequent calls to be paid at double time;

  • Application of compensatory rest break provisions as per the Organisation of Working Time Act 1997;

  • Written confirmation from the Company that a Worker’s personal motor vehicle is insured under the Company’s policy when in use for on-call duty;

  • Introduction of a non-contributory personal attack benefit scheme;

  • Mileage expenses to cover travel to and from call-outs;

  • Premium payments for on-call duty on Christmas Day, Easter Sunday and New Year’s Day.

The Company’s Representative told the Court that it has operated the same on-call policy since the Crescent Shopping Centre opened in 1973 and specific provision is made for on-call duty and payments in each Worker’s written contract of employment. She submits that it follows that the Company’s on-call policy, although not comprehensively stated in a separate policy document, is well known to all concerned. The Representative stated, however, that the Company is agreeable to setting out the details of the on-call arrangements in a separate written policy.

The Company submits that the Workers’ rate of pay expressly incorporates payment for on-call availability and that a Worker who is called in is paid a minimum of two hours’ pay at the appropriate premium rate, irrespective of the duration of the call. This arrangement, it says, equates to arrangements in place in other comparable shopping centres in the region and the rates of pay enjoyed by its Workers are higher than those in comparable companies. In its submission, therefore, a call-out allowance is not merited.

The Company’s position regarding compensatory rest breaks is that a Worker who is called out at night is permitted to take an appropriate amount of paid time off at the commencement of the following morning’s shift. That being the case, the Company believes it exceeds its obligations in this regard under the Organisation of Working Time Act 1997.

The Company does not accept that it has any responsibility to provide insurance cover for a Worker’s motor vehicle when he or she is on-call. There is no requirement for a Worker to own a vehicle. He/she is simply required to attend at the premises to deal with the issue that has arisen within thirty minutes of receiving the call. Getting to and from the place of work is, in the Company’s submission, a matter for an individual Worker. It follows, it says, that there is no basis for the payment of mileage rates for attending call-outs.

The Company is not agreeable to fund a personal attack benefit scheme. While on on-call duty, a Worker is provided with a lone-worker mobile device that meets the high-end standards of personal safety and security. The Company, is however, prepared to concede the Union’s claim for premium on-call payments for Christmas Day, New Year’s Day and Easter Sunday.

Recommendation

Having considered the Parties’ written and verbal submissions, the Court recommends as follows:

• 
  • The Company should set out the full details of its on-call policy in a comprehensive written document within six weeks of the date of this Recommendation;

  • The policy should be amended to provide for an on-call allowance of €140.00 per week for each full week of on-call duty performed by a Worker i.e. €20.00 per night;

  • An allowance of three times the normal daily rate to be paid to a Worker when rostered on-call on Christmas Day, New Year’s Day or Easter Sunday i.e. €60.00 per day;

  • The Workers be enrolled in the Construction Workers’ Injury at Work Scheme.

The Court finds that the claim for mileage expenses in respect of on-call attendances is not consistent with Revenue rules and, therefore, without merit. Likewise, an individual who owns and operates a motorised vehicle is required to have valid, current insurance cover and, consequently, the Company cannot be expected to provide insurance cover for a Worker’s vehicle used for the purposes of attending at the workplace. Finally, it is clear to the Court that the Company meets its requirements with regard to the provision of compensatory rest breaks in full. However, for the avoidance of any doubt about this, the details of the current arrangements should be specified in the Company’s written on-call policy document.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
25th June 2019 ______________________
SC Deputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.