ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00025506
A City Council
Jay Power SIPTU
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: 14/02/2020
Workplace Relations Commission Adjudication Officer: Michael Ramsey
In accordance with Section 13 of the Industrial Relations Acts 1969following 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.
The Complainant is seeking adjudication by the Workplace Relations Commission pursuant to Section 13 of the Industrial Relations Act, 1969 and has submitted that he has trade dispute that he would like investigated (CA-00032418-001)
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on the 17th June 1986. The Complainant’s current role is a Leisure Attendant/ Superintendent for a public swimming pool. The Complainant submits that he has incurred a significant loss because of the change to overtime arrangements brought in by the Respondent. The Complainant customarily works a shift roster which commences Tuesday to Saturday. The facility is normally closed on Sunday and Monday, and only opened on overtime when clubs or associations wish to hire the facility or when maintenance work is required.
The Complainant submitted the custom and practice of overtime dates to when this service first opened and swimming pool attendants would be first to be offered any available overtime. Only when they were unavailable would the overtime be offered to other staff. Following a dispute in relation to overtime in 2000, which was settled, it was accepted that the custom and practice of the appointed swimming pool attendant being offered overtime in the first instance would continue. Since then there have been two restructuring agreements in 2010 and 2018 and neither of those agreements made any attempt to change the procedure whereby the appointed swimming pool attendant would be offered the overtime in the first instance.
In January 2019 the Respondent deviated from the practice of bringing in swimming pool attendant's on overtime and instead brought in a relief attendant to cover the overtime on a Sunday for an external group. On the 1st May 2019 the Complainant sent an email to his Inspector asking whether he was going to offer the appointed staff the overtime for the Sunday. The inspector replied stating there is no overtime on a Sunday as they have staff to cover the shift.
The parties were unable to resolve this matter so it was referred to the Trade Union as a dispute. SIPTU wrote to the Inspector asking him to clarify the situation, as to why the agreed procedures for allotting overtime were not being applied on this occasion and further stated that the Respondent could not just roster relief staff to replace appointed staff on overtime.
The senior executive officer with responsibility for Sports/Leisure Centre's and Swimming pools responded to SIPTU, outlining he was not aware of any agreement covering how Swimming pool appointed staff receiving overtime, and that the Management from the Respondent could use relief staff if required.
SIPTU challenged this opinion by stating that by opening the facility on the Sunday with non-appointed personnel was a breach of the agreed custom and practice that had existed for the previous 20 years. SIPTU appealed this decision to the Human Resources Department on the 10thMay 2019.
The Human Resources Department responded that the Respondent had entered into an agreement covering the Leisure Centres and the swimming pools back in 20 I 8 and this agreement superseded any local agreements in the swimming-pools. Further, overtime in this particular case could make the leasing arrangement with the external provider uneconomic.
The Complainant submitted the main issues with the Respondent’s handling of this matter included that they never asked the staff from the swimming pool section would they be prepared to discuss covering the Sunday hours outside of the normal method of payment for overtime. Further, the Respondent never sought to meet with either the staff or their Trade Unions about making such wider ranging changes regarding the distribution of overtime within the swimming pool section. Instead, the Respondent ignored the normal custom and practice within the swimming pool section for allotting overtime and in that regard the Human Resources Department discarded the original custom and practice by stating that the new agreement of 2018 superseded all previous arrangements. This statement was made even though the overtime agreements for the swimming pools were never discussed during the negotiations for either the 2010 or 2018 restructuring agreements.
The Complainant further submitted that the Respondent is seeking to justify the change in the normal procedure for allotting overtime by stating that it would be uneconomic although there had been no previous mention of this particular issue not being economically viable in their initial discussions on this topic in May 2019.
Ultimately, the Complainant is seeking redress in the form of compensation for the loss of overtime on Sunday he would have received if the agreed procedures had been followed.
This Complaint was received by the Workplace Relations Commission on the 22nd November 2019.
Summary of Respondent’s Case:
The Respondent manages three stand-alone swimming pools with 5 permanent staff. A number of Relief Attendants are also available and are called in when required. There was a proposal to close all swimming pools back in 2009 due to the cost of running them on the basis of opening them 7 days a week however a compromise measure led to reduced opening hours for the pools during the week and closure on Sunday and Monday. Even with the reduced opening hours and days it costs the Respondent €600,000 net per annum to provide this service.
A review of all the Respondents Sports and Recreation Services was agreed with the unions in early 2018. Included in this review was the possibility that the operation of the swimming pools could be taken over by external operators on Sundays and Mondays. If this occurred it was essential that the Respondent would not make a financial loss.
In or about May 2019 a external contractor approached the Respondent with a view to hiring out the swimming pool for a number of hours every Sunday so that they could provide swimming lessons for a particular group of children in the local area. The Respondent was amenable to entering into an arrangement provided the fee charged covered the cost of opening the pool for the requisite hours. Upon reviewing the calculations for such an arrangement it was apparent that the fee for the rental of the pool would cover the costs on a break-even basis if the lifeguard cover was provided by the Respondent through the attendance of a Relief Attendant being paid at his normal hourly rate. Any other arrangement would be uneconomic.
In relation to the Complainants contention that an agreement dating back two decades which ensured that when overtime was available it had to go to in the first instance to the permanent appointed staff, the Respondent submitted that they have no record of any such written agreement and it is further unlcear if the relief employee was being offered overtime in at that time or was being requested to work an ordinary day.
There have been two revisions of the arrangements in the swimming pools since, one in 2010 and the second as part of the overall review of the Sports & Leisure Section negotiated with the unions in 2018. The 2018 review involved a large element of recruitment and regularisation of pay for existing staff.
Firstly, the Respondent deemed it reasonable that agreements that might have existed some years previously, whether formal or informal, would now be superseded by the new arrangements. Secondly, it is submitted that the pools opened in those years on a 7 day per week basis and that overtime would not generally have been an issue. Thirdly, what is being proposed is not overtime, per se, but an arrangement whereby a relief attendant would come in and be paid at the normal hourly rate for hours worked in order that a viable service is provided to the local community by an external contractor.
The Respondent further submitted that it is in line with normal practice in the Sports & Leisure Section whereby management endeavour to give relief staff as close to 39 hours work per week as feasible and it is only after that avenue is exhausted before alternative options, such as overtime, are considered. To pay overtime would mean the service could not operate on a break-even basis and could not therefore be put in place. This would have meant that the external contractor, her customers and the relief attendant would thereby be deprived of the benefits that would accrue from the arrangement.
The Respondent has no issue with the practice that overtime is first offered to permanent full time employees ahead of relief employees and that is what happens when actual overtime is available. However, in this particular case, overtime was not available and no one was getting overtime.
In relation to the Complainants contention that staff who work relief attendance should not be classified as similar in nature as part of the original agreement for the protection of the permanent staff overtime, the Respondent submitted they reserve the right to assign staff as they deem most appropriate for the provision of the most efficient service possible. The Respondent operate on a flexible basis and any employee, of whatever grade, may be assigned any duties, and to any location within the Sports & leisure Section that may be deemed appropriate. The Respondent would deny there is any substance in the suggestion that the relief attendant is part of a separate stream to employees currently in the swimming pools.
It is the Respondent’s position that the Complainant is not entitled to any redress.
Findings and Conclusions:
In the circumstances of this matter, I have carefully listened to the evidence tendered in in the course of this hearing by both parties.
In that regard, I accept that, as per the Respondent’s submissions, that they have no issue with the practice that overtime is first offered to permanent full time employees ahead of relief employees and in this particular case, overtime was not available and no one was getting overtime. I further note the relevant extract from the aforementioned 2018 agreement between the Respondent and Union in relation to swimming pools and the operation of the facilities by an outside operation. I have also considered the letter dated the 9th February 2018 wherein, inter alia, SIPTU accept that the staff of the Respondent recognise, in relation to the matter of entering into an agreement for a contract of delivery of service to a private company for the Sunday and Monday periods of the week, that they are not bought in on those days and believe that this is an issue for the Respondent to consider. However, the staff of the Respondent, would be prepared to support any company coming in to offer extra services for the local community.
However, in relation to this particular complaint, the Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations (and also extends to processes brought under Section 13 of the Industrial Relations Act 1969) as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”
Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent, in relation to the ongoing dispute, conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases. Accordingly, having examined the process in question and upon consideration of both parties evidence and submissions, I am satisfied that the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.
As already stated and as per the Labour Court’s position confirmed in Bord Gais Eireann -v- A Worker AD1377, my role in the context of a dispute relating to disciplinary action is confined to considering the reasonableness of procedures adopted in the particular circumstances, as opposed to placing myself in the role of the employer and making findings of fact in relation to the matters alleged. I am further guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the procedures for dealing with workplace disciplinary or grievance matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.
In the circumstances of this case and in consideration of the above, I am also satisfied that the Respondent complied with the general principles of natural justice and fair procedures.
Accordingly, I am not making any recommendations in relation to this matter.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I find that the Complaint (CA-00032418-001) under section 13 of the Industrial Relations Act, 1969, fails.
Dated: 18th May 2020
Workplace Relations Commission Adjudication Officer: Michael Ramsey