INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
IRISH BLOOD TRANSFUSION SERVICE
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY IRISH NURSES ORGANISATION)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr. Somers
1. Appeal of Rights Commissioner's Recommendation IR13833/03/GF.
2. The issue involves an alleged failure on the part of the Organisation to pay the worker subsistence allowance for clinic attendance. The Union are requesting that the "red circled" payment of a subsistence allowance in respect of all clinics attended by the worker, where the duration of attendance is in excess of five hours. They also request retrospective payment of the allowance. The Organisation claims they were precluded from paying this, as per the Department of Health circular No.11/82. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 16th September, 2003, the Rights Commissioner issued his recommendation as follows:
“I believe that considerable ambiguity existed during the claimants commencement, it was unfortunate. However, I am conscious of the Departmental circular and for that reason I am recommending she be paid €3,000 in a red circled agreement".
- On the 2nd October, 2003 the Employer Body on behalf of the Organisation appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 4th December, 2003.
3.1 There is no evidence to substantiate the worker's claim that she would be given the travel and subsistence allowance in contravention of public sector rules. There is no mention of the allowance in the contract of employment signed by her on the 26th February 2002.
2. The Organisation is audited by the Comptroller and Auditor General, and they cannot allow a bad practice to continue which is in contravention of policy.
3. There would be repercussions if the claim was to be paid retrospectively, a number of staff have been employed since January 2002. There are more than 166 new staff who are entitled to claim subsistence and do so according to policy.
4. Subsistence payment are not earnings and are not treated as such for any reasons, including tax purposes. It is disingenuous to claim "loss of earnings" for these payments.
4.1 At interview, the worker was told that the existing arrangements for the payment of the allowance would remain in place. The worker accepted the position offered within the Organisation on the basis these arrangements would remain in place.
2. The Organisation's contention that they are bound to pay subsistence in accordance with public sector policy can only be viewed as false when they are perfectly able to ignore public service policy in relation to other areas, ie granting of sick leave to nursing officers.
3. The Organisation engage in selective implementation of arrangements to achieve the highest level of financial efficiency possible to the detriment of the employee.
Having considered the submissions of the parties, the Court is of the view that the claimant was mislead at interview, to some degree, regarding the basis upon which subsistence would be payable. However, the Court does not accept that this could lead to ongoing entitlement to payment on the old basis.
In the circumstances the Court considers that compensation in the amount of €2,000 is appropriate redress for what occurred.
The recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.