ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004063
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 28/11/2016
Workplace Relations Commission Adjudication Officer: Gerry Rooney
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Sec 13 of the Industrial Relations Act, 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Attendance at Hearing:
A Grounds Keeper/Gardner
A Health Care Employer
Complainant’s Submission and Presentation:
This dispute refers to the Complainant (a Grounds Keeper and Gardner) who has raised a grievance regarding an unresolved proposal from the Respondent to remove him from working public holidays which would led to a loss of pay over the year.
The Complainant argued that the case had been subject to conciliation at the WRC but remained unresolved. He also argued that an arrangement was in place since May 2011 which red circled his role, and his terms and conditions of employment. The Complainant maintained that due to the necessity to complete work which could only be done on a public holiday he has traditionally worked the public holidays, and accordingly the Respondent was not entitled to make the proposed changes.
Respondent’s Submission and Presentation:
The Respondent acknowledged that the Complainant had traditionally worked the public holidays and that his terms and conditions had been subject to a red circle agreement in May 2011. The Respondent advised that this red circle agreement was agreed in May 2011 to address a reconfiguration of services which was required at the time, and where the Complaint with other employees were moved to a new work location and duties. However since then the other employees that had worked Public Holidays and whom were covered by the red circle agreement had subsequently changed these arrangements and stopped working public holidays.. It was however acknowledged that the other employees retained a shift allowance due to the red circling, where the shift allowance did not apply to the Complainant.
The Respondent argued that since 2014 it has been progressing with a series of cost containment plans where it had consulted with the staff affected, including the Complainant. It argued that the need to work public holidays no longer existed, and that it could not sustain these arrangements. The respondent also argued that in accordance with the public sector agreement it was entitled to progress with necessary changes, and where severance arrangement existed that are applied at 1.5 times the annual loss.
The Respondent acknowledged that the matter could not be resolved at conciliation.
In accordance with Section 13 of the Industrial Relations Act 1969 I am entitled to investigate the matter and make a recommendation to the parties setting forth my opinion on the merits of the dispute.
Having considered the matters and representations made by the parties, I acknowledge the following issues have a bearing on a resolution of the current dispute:
That the Complainant is entitled to have the red circle agreement acknowledged by the Respondent;
That the Complainant has traditionally worked the public holidays since 2011 where he benefitted from an extra days pay and an extra days leave following each public holiday that he worked;
That the Respondent is entitled to determine the allocation of work and within reason the working time of the Complainant;
That the Respondent, following consultation, is entitled to review the necessary changes in order to affect objective cost savings, provided such changes are made within the public sector agreement and with regard to the Complainant’s entitlements under the public sector agreement.
Based on these parameters, and taking on board the entitlements of both parties, I recommend that as the changes are required for objective and cost saving purposes, the change in the public holiday work practices occur on a phased bases as follows, and where the Complainant is compensated in accordance with the agreed 1.5 times loss as identified in the public sector agreement:
2016- work seven public holidays, compensation for the loss of two public holidays at the agreed premium
2017- work five public holidays, compensation for the loss of two public holidays at the agreed premium
2018- work three public holidays, compensation for the loss of two public holidays at the agreed premium
2019- no public holiday working, compensation for the loss of three public holidays at the agreed premium
Compensation is to be paid at 1.5 times the Complainants entitlement, and at the start of each calendar year for the agreed number of days as outlined above. For the sake of doubt, the Complainant will be provided with the opportunity to work 15 public holidays, at a reducing rate, from 2016 to 2019 as set out above. The Complainant is also to receive compensation payment for the loss of 9 public holidays over the period.
Dated: 19 January 2017