INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Out of hours service.
2. The case concerns a worker employed at Tabor Lodge Treatment Centre. The worker in question is employed as Deputy Administrator at the centre. The dispute before the Court is based on a requirement of the Deputy Administrator to be available to take emergency phone calls outside of regular office hours.
The Union's case is that it is unreasonable for the worker to be required to be available to take emergency calls 24 hours a day, seven days a week, fifty two weeks a year, and are seeking that a rota be put in place to apply a one in four weeks liability to the provision of an out of hours service.
The Company's case is that there is a responsibility on the Deputy Administrator to "deputise for the administrator" and provide an out of hours service. In reviewing the position the Company put forward proposals which would resolve the problem.
The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 19th May, 2004, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 13th October, 2004, the earliest date suitable to the parties.
3. 1. The provision of an out of hours service, without protocol or remuneration is inappropriate and unsustainable. The worker suffered considerable stress and her health and personal life suffered as a result.
2. Proposals were put forward by the Union that a one in four weeks liability would apply, with an agreed protocol and procedure for responding to an emergency and travel expenses and overtime where appropriate. This was rejected by the Company.
3. It would have serious health, family and social implications for the worker if she had to be available 24 hours a day, seven days a week, fifty two weeks a year. The Company has a duty of care to the employee under the Health and Safety at Work Act 1989, and would fail in that duty if this practise continues.
4. 1 It is an implied terms of the contract of the Deputy Administrator to be contactable in the event of an emergency. This is both reasonable and practical.
2. At conciliation, proposals were put forward to resolve the situation as follows:-
(a) The Deputy Administrator's name would be laced as the fourth on the list. This would ensure that the likelihood of her getting emergency calls would be significantly diminished.
(b) Her home telephone number would be removed from the list. This would be replaced solely by her mobile phone. In that context, she naturally would have complete discretion on when it was turned on.
(c) The Board was also open to the idea of even agreeing certain days when her name would not be on the emergency list. However, because of the rigid position adopted by the worker it was not possible to explore this.
(d) In any case where the worker responded to an emergency call she would receive time off in lieu in respect of any period of time when she was dealing with the issue.
Having considered the views of the parties expressed in their oral and written submissions, the Court notes that the practice of calling on the Deputy Administrator out of hours has changed dramatically as a result of action by management to limit such calls to emergencies only and by their efforts to put in place a formal mechanism for such calls.
While the Court accepts that the concerns of the Deputy Administrator are genuine and honourable, the Court is of the view that due to the small number of such calls there is no requirement for a stand-by arrangement as proposed by the Union.
Therefore, the Court is of the view that the proposal made at conciliation by the employer is reasonable in the circumstances and recommends that it should be accepted by the Union, on the basis that it is subject to a review after a period of one year, to assess its operation.
Signed on behalf of the Labour Court
26th October, 2004______________________
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.