FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HEALTH SERVICE EXECUTIVE SOUTH-EAST - AND - FORSA DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Twilight-hours premium payment for Care Managers in St Joseph's School, Ferryhouse, Clonmel..
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 19 October 2017 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 2 May 2018.
UNION'S ARGUMENTS:
- The Union contends that the usually stringent adherence to red-circling of terms and conditions of employment for employees who have transferred from the Department of Education and Skills to the Health Service Executive is not applicable in these circumstances
- The changes made to Care Managers' shift and pay arrangements have opened the door to the application of the unsocial hours premium.
- The Claim is for a finite time period during which the Care managers worked the revised roster for the hours of 8.00 p.m. to 12.00 Midnight.
COMPANY'S ARGUMENTS:
- The Care Manager Group have already been compensated for the loss of earnings suffered as a result of the reconfiguration of their rostered hours
- If the claim is conceded it would further enhance the red-circled terms and conditions already enjoyed by the Care Manager group. As such, a similar claim could be pursued by similar grades.
- The option of a transfer to the terms and conditions of HSE/TUSLA contracts remains open to the Care Managers.
RECOMMENDATION:
St Joseph’s School, Ferryhouse is an open residential centre for boys. It was originally run by the Rosminian Order but transferred to the direct control of the Department of Education in 2002. The Health Service Executive assumed responsibility for the School from March 2007. Responsibility thereafter passed to the Child and Family Agency/TUSLA (‘the Respondent’) after its establishment in 2014.
The within dispute concerns a claim for payment of a twilight-hours premium payment to five individual workers employed as Care Managers at the School (‘the Workers’). The Workers are employed on red-circled terms and conditions that date from their original employment with the Department of Education. The majority of the Workers’ colleagues are employed on standard HSE terms and conditions as applicable to their respective grades.
In 2014, a collective agreement was reached between the Trade Union and the Respondent in relation to roster arrangements at the School. As a consequence of that agreement, the Workers were no longer required to provide ‘Live Night cover’ for which they had previously been in receipt of a 25% shift allowance. The Workers were subsequently compensated for the loss of earnings that resulted from that change to their working arrangements. The compensation was calculated as per the Public Service Agreement terms and paid in two instalments: 50% in September 2015; 50% some six months later.
The 2014 local agreement in relation to working hours at the School had a second material consequence for the Workers. Prior to the conclusion of that agreement, the Workers’ shift finished at 10.00 p.m. Under the new arrangements, as they were applied for a defined period between September 2014 and January 2015, the Respondent could have been rostered up until 12.00 midnight. Colleagues employed at the School on HSE contracts receive a twilight hour premium of time and 1/6 for hours worked between 8.00 p.m. and midnight. The Union submits that the Workers should also have received this premium in recognition of their extended working hours during the aforementioned period up until January 2015. The manner in which the residential service at the School is operated changed significantly following a referral to the Labour Relations Commission in January 2015.
The Respondent, on the other hand, submits that the within claim is a cost-increasing claim and, therefore, not permitted under the terms of the Landsdowne Road Agreement; that the Workers have no entitlement to the payment of the twilight- hours premium as their red-circled terms and conditions are, in many respects, more favourable than those of their colleagues employed on HSE contracts; and that the Workers were fully compensated for the loss of their night shift allowance. It is also, it submits, open to the Workers – individually or as a group – to transfer to HSE contracts of employment. Finally, the Respondent has also expressed a concern that the concession of the claim could result in similar claims on behalf of other grades employed at the School.
Recommendation
The Court, having carefully considered the parties’ submissions, recommends that that the five Care Managers on whose behalf the within claim is advanced should receive a once-off payment of €1,000.00 per person in full and final settlement of their historic claim. This Recommendation is made strictly in the context of the unique circumstances which gave rise to the within dispute and is not to be taken as a precedent for any future claims. The Court notes the emphatic undertaking given by the Trade Union in the course of the hearing that it would not seek to pursue any such knock-on claims.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
JD______________________
15 May 2018Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Deegan, Court Secretary.