FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal Of Rights Commissioner's Recommendation R-121725-IR-12/SR.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal ofRights Commissioner's Recommendation R-121725-IR-12/SR.The dispute relates specifically to the Worker's claim that during the course of his employment as an Emergency Medical Technician (EMT), he has received the incorrect rate of pay for "on-call" duties carried out. It is the Worker's claim that during on-call shifts he is required to remain at his place of employment and furthermore he receives a lower rate of on-call pay than his counterparts at an alternative location. The Employer rejects the Worker's position and agreement could not be reached. The matter was referred to a Rights Commissioner for investigation and recommendation.
On the 30th August 2012 theRights Commissionerissued his Recommendation as follows:
"I note that it was established at the hearing that the conditions that apply to the Claimant in this matter are the same ones that apply to all of his colleagues at the same base and also to all his colleagues in all bases in the Region with the sole exception of the Sligo Base. Thus the conditions that apply to the Claimant are the same as apply to the overwhelming majority of his colleagues doing the same work in the same circumstances. In such circumstances it is impossible to accept that the Claimant is being treated any less favourably than the vast majority of his colleagues in the Region in the same circumstances as him. This also means that any change of the nature sought by the Claimant would affect a group or 'body of workers' and in accordance with Section 13(2) of the 'Industrial Relations Acts' cannot be dealt with by a Rights Commissioner.
In addition as the current rate in dispute has applied to the claimant and the overwhelming majority of his colleagues for a very lengthy period, it is clearly an "established rate and condition" and as the claim is clearly a claim for the improvement of that rate it is precluded by the provisions of clause 1.27 of the Public Service Agreement 2010-2014 as upheld by the Labour Court in many recommendations/decisions, including but not limited to LCR 20013.
In light of the above I cannot entertain the claim".
On the 10th October 2012 the Worker appealed theRights Commissioner's Recommendationto the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on 9th April, 2013.
UNION'S ARGUMENTS:
3. 1. The Worker has no alternative other than to remain at base during his on-call shifts.
2. The Union on behalf of its member contends that the Worker should receive an on-duty rate of pay during on-call periods while he remains located at his place of employment.
3. The Union asserts that this is an individual claim taken solely on behalf of its member and is not concerned with potential knock-on claims.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer maintains that the Worker is not required to remain at base during on-call periods.
2. Concession of the Worker's claim would result in a number of knock-on claims causing financial detriment to the Employer.
3. The Employer is bound by the terms of the Public Service Agreement 2010-2014 and is not in a position to concede the Worker's cost-increasing claim.
DECISION:
The matter before the Court concerns the Worker’s appeal of a Rights Commissioner’s Recommendation concerning a claim by the Union of an Emergency Medical Technician's (EMT) claim that he should be paid full duty rate of pay for periods of on-call. The Union submitted that as he remains at base at Carrick on Shannon for his on-call period, he should be paid the appropriate duty rate and not the on-call rate. The Union sought the same pay conditions as those that apply to his colleagues who do not remain at bases when on-call and who are paid the duty rate when called out. The Rights Commissioner declined to deal with the case as he was of the view that the claim related to a body of workers and therefore in accordance with Section 13(2) of the Industrial Relations Act 1969, was of the view that he had no jurisdiction. Furthermore he held that the claim was precluded by the provision of Clause 1.27 of the Public Service Agreement 2010-2014.
HSE West stated that the Claimant is not required to attend at base for period when he is on-call, however, he is required to be close-by and to respond to call-outs within a reasonable period for an EMT.
As the Claimant’s home is some distance away, it would not be reasonable for him to respond to call-outs from home.
Having considered the submissions of both sides the Court notes that there are a variety of arrangements in place nationally for EMTs to respond to call-outs, however, the priority at all times is to ensure a rapid and efficient response-time.
The Court accepts that the Claimant’s contractual on-call requirements are no different than those which apply to his colleagues based at Carrick on Shannon and both are paid the appropriate duty rate when called-out, accordingly, the Court does not recommend concession of payment of the duty payment while on-call.
However, the Court is of the view that there is an onus on Management to bring clarity to its call-out requirements in order to ensure uniformity and consistency, taking into account its statutory obligations regarding working time, bearing in mind the need for continuity of service.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th April 2013______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.