FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : UL HOSPITAL GROUP ENNIS GENERAL HOSPITAL - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION FORSA DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Hall |
1. Calculation Of Compensation For Loss Of Earnings
BACKGROUND:
2. This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 16 January 2018 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 11 April 2018.
UNION'S ARGUMENTS:
- LCR19995 and LCR20943provide a formula for calculating actual loss of earnings under the Agreement to the Public Service Executive of the Irish Congress of Trade Unions and to the Public Service Management in each sector. Such a formula is what should be applied in this instance.
- The Union informed the Court that both Workers in this instance were entitled to be paid equal to one and a half times the annual loss.
- The two workers in question suffered a considerable loss in earnings following on from the agreement between the Unions and the Employer regarding a complete restructure of the Administration function within Ennis General Hospital.
COMPANY'S ARGUMENTS: - There is no dispute between the parties with regard to the payment of compensation for premium and extra hours.
- Overtime worked by the two Workers was not regular, rostered or structured therefore, no compensation is payable for overtime.
- The Hospital view this claim as bothcost increasing and precedent setting.
RECOMMENDATION:
The matter before the Court concerns a claim by the Unions regarding the Public Service Agreement on the calculation of compensation for loss of earnings. The Unions represented one Claimant each and held that the formula should be based on the actual losses incurred, whereas the employer was of the view that overtime payments should not be included in the calculation. It stated that the overtime was offered to the Claimants two weeks in advance and was therefore not contractual overtime. Furthermore, the employer stated that access to overtime continues for the Claimants.
It was agreed between the parties to pay the Claimants compensation for loss of earnings arising from the restructuring of clerical duties at Ennis General Hospital. Furthermore, it was agreed to pay the compensation in accordance with the Public Service formula. Losses were accrued due to the Claimants’ loss of extra working hours. The employer stated that the changes were not driven by the need to create cost savings but to reduce staff working extra hours while being offered regularisation of the hours worked in the past, conversion of administrative agency staff and recruitment of additional staff to support administrative services.
The dispute has arisen between the parties as the employer is of the view that loss of overtime hours should not be included in the calculation as it had not been regular and rostered whereas the Unions are of the view that the formula provided for compensation for the actual losses sustained in the relevant period. The employer proposed to pay compensation for loss of premium and extra hours worked but not overtime.
Public Service Agreement Compensation Formula provides: -
- Compensation for actual loss of earnings arising should be calculated on the basis of 1.5 times the actual loss. The level of loss should be established in each case by comparing earnings in a full twelve month period in which the new arrangements has been in operation with a corresponding period in which the current system operated. The first moiety of 50% of the compensation due should be paid twelve months after the new arrangement becomes operational, with the remaining 50% of the amount due should be paid six months thereafter.
An established distinguishing feature between regular and rostered overtime and ad hoc overtime is that the former is mandatory or contractual whereas the latter is voluntary. Where overtime is mandatory or contractual it becomes, in effect, part of a workers normal working hours and should be compensated for if discontinued. Where overtime is not mandatory it is voluntary to both parties, in the sense that the employee is not obliged to work the overtime and the employer is not obliged to provide it. The Court has consistently held that in such cases compensation is not payable.
Having considered the submissions of both parties, the Court has examined the information furnished by the parties giving details of the overtime worked by the Claimants in the period in question. This information shows that overtime has been worked by the Claimants on an irregular basis, the Court is satisfied that it could not be classified as contractual overtime and therefore does not meet the test of regular and rostered overtime.
Therefore, the Court does not recommend in favour of concession of the Unions’ claim for application of the loss of overtime in the PSA compensation formula.
The Court so Recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
JD______________________
27 April 2018Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Deegan, Court Secretary.