Labour Court Database __________________________________________________________________________________ File Number: CD87788 Case Number: AD8793 Section / Act: S67 Parties: GALWAY CORPORATION - and - ITGWU |
Appeal by the Union against Rights Commissioners Recommendation (CM18,004) concerning a claim for retention of acting up rate.
Recommendation:
4. On the basis of the submissions made by the parties the Court
is of the opinion that in this instance the terms of 5.1 of the
Rationalisation Agreement apply and therefore upholds the Rights
Commissioner's Recommendation. The Court so decides.
Division: Mr O'Connell Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD87788 APPEAL DECISION NO. AD9387
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: GALWAY CORPORATION
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioners
Recommendation (CM18,004) concerning a claim for retention of
acting up rate.
BACKGROUND:
2. The appeal concerns a worker employed by the Corporation since
May, 1978 and employed as a ganger since April, 1979. The
worker's basic rate of pay is #154.34 per week. From time to time
the worker acted up as foreman and has been doing so continuously
since April, 1986.
3. In 1981 the rationalisation agreement for general operatives
was implemented. On the introduction of the rationalisation the
foremen then employed by the Corporation retained their existing
rate on a personal basis as this rate was greater than the
national rate for foremen recommended by the rationalisation
agreement. All foremen appointed to the Corporation since the
date of rationalisation are paid at the national rate for foremen.
4. The Union claimed that the worker should continue to be paid
the pre-rationalisation foreman's rate when he acts up as foreman.
The Corporation rejected the claim. No agreement was reached
through local negotiations and the matter was referred to a Rights
Commissioner who on 1st October, 1987, having investigated the
matter issued his recommendation as follows:
The worker's substantive position is ganger and when he acts
in a higher capacity he is entitled only to the substantive
rate of the job in which he acts up.
The pre-rationalisation foremen were allowed to retain their
former rate on a personal basis but all subsequent appointees
get the national rate. That is the rate which the worker
could expect if he is promoted and it must also be the rate
to which he is entitled when acting as foreman temporarily.
(The worker was named in the Rights Commissioners
Recommendation).
On 16th October, 1987 the Union appealed the Rights Commissioner's
recommendation to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on
11th November, 1987 in Galway.
UNION'S ARGUMENTS:
5. 1. The Corporation relied on clause 5.1 of the
rationalisation agreement, and that clause referred to the
fact that there would be no claims by the Union for
previously held differentials. However, they did not take
any cognisance of clause 5.3 which specifies that no workers
would have his terms and conditions of employment worsened by
the rationalisation process and the Union contends that this
is exactly what happened in the case of the worker. The
Rights Commissioner, did not take proper cognisance of this
clause.
2. The Corporation argued that the position which the worker
is acting up into since April, 1986 was not held by a foreman
prior to rationalisation. The Union do not accept this on
the basis that the worker's current duties, as acting up
foreman, are far greater than the original job requirements
of the previous foreman and that also incorporated most of
his duties.
3. The over-riding principal in rationalisation was that the
rates would be brought into line in the country so that it
would be possible then to progress towards the Dublin rates
over a period of two years. The Court is probably aware that
this happened in May, 1986, where for the first time all the
rates in the local authorities were uniform; that no worker
would lose anything other than the 'dirty money allowance and
service pay'. The position of acting up was not catered for
specifically but it was understood that people who had the
facility would continue to do so.
4. The overall cost to the Corporation, given that the claim
is confined to one person, is well within their ability to
concede.
5. The Corporation stated that it could not live with a
situation where a ganger acting up into foreman would receive
more money than a fully appointed foreman on the new
rationalisation scale. This argument is flawed on the basis
that a ganger or labourer on the top of the scale at the
moment are on more money per week than a foreman starting off
on the first point. The situation also arises when a
pre-rationalisation foreman is working with a newly appointed
foreman.
5. 6. The Corporation have conceded, in local discussions, that
this matter is an anomaly situation and they indicated to the
Union that the matter should be approached differently. This
was relevant to the extension of the Borough area and the
up-grading of the Corporation to City Borough status.
However, there has been no progress made on this matter.
CORPORATION'S ARGUMENTS:
6. 1. The worker's claim is in breach of clause 5.1 of the 1981
rationalisation agreement which states that it is accepted by
both sides as fundamental to the rationalisation process that
no consequential claims for the restoration of previously
held differentials shall be made.
2. Since the date of rationalisation the worker was not
required to act up as foreman until April, 1986. He has been
acting since that date.
3. If the Corporation were to pay the worker an acting
allowance based on the personalised foreman's rate they would
find themselves in an anomolous situation whereby an acting
foreman would be on a higher rate of pay than a qualified and
permanent foreman employed since rationalisation. The worker
did compete for a post of foreman which arose in the period
since he commenced acting in 1986 and was not successful.
DECISION:
4. On the basis of the submissions made by the parties the Court
is of the opinion that in this instance the terms of 5.1 of the
Rationalisation Agreement apply and therefore upholds the Rights
Commissioner's Recommendation. The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
__________________________
Deputy Chairman.
1st December, 1987
T.O'M/J.C.