Labour Court Database __________________________________________________________________________________ File Number: CD89195 Case Number: LCR12394 Section / Act: S20(1) Parties: CORAS IOMPAIR EIREANN - and - TRANSPORT SALARIED STAFFS' ASSOCIATION |
Claim by the Association on behalf of 19 clerical staff concerning their appropriate rates of pay.
Recommendation:
5. Having considered the submissions made by the parties, the
Court has had regard to the fact that the claimants were not
promoted in the normally accepted sense, but were appointed as a
result of open competition. In the circumstances they have to
accept the pay and conditions laid down by the Company in relation
to this open competition.
The Court, therefore, does not recommend concession of the
Association's claim.
Division: Mr Fitzgerald Mr Shiel Mr Devine
Text of Document__________________________________________________________________
CD89195 RECOMMENDATION NO. LCR12394
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)
PARTIES: CORAS IOMPAIR EIREANN
and
TRANSPORT SALARIED STAFFS' ASSOCIATION
SUBJECT:
1. Claim by the Association on behalf of 19 clerical staff
concerning their appropriate rates of pay.
BACKGROUND:
2. On the 4th May, 1987, the Association was informed of the
Company's intention to recruit clerical officers and clerical
assistants for employment in the Company and its three
subsidiaries. It was proposed to fill the vacancies by way of
both external and internal advertisement. A notice inviting
applications was placed in the newspapers on the 9th May, 1987.
On the 25th May, 1987, the Association wrote to the Company asking
for an explanation for the omission of a salary scale in the
advertisement. In its reply to the Association the Company
indicated its reasons and confirmed that the scales agreed with
the unions would be paid to the new recruits. Interviews for the
vacancies commenced on 25th June, 1987. In July, 1987, the
Association was informed by its members that at the interviews
they were told that successful "internal" candidates would be
placed on the starting point on the appropriate salary scale to
the grade to which they were appointed, irrespective of their
existing rate of pay. This was confirmed by the Company on the
8th July, 1987. The Association objected to this arguing that in
previous limited internal competitions successful applicants were
placed on the next highest appropriate salary point on the
promotional salary scale to their existing salary. In this
particular case a number of applicants would if successful have to
accept a reduction in earnings. As a result of financial
constraints on the Company at the time, recruitment was deferred
until January, 1988, when the Company received approval for the
new appointments. The Association at this time re-iterated the
view previously expressed. The Company replied that under
previous legislation which was now repealed, provision was made
for an internal limited competition, and successful candidates
could be put on the highest appropriate salary point. However
this particular competition had been conducted under the current
legislation i.e. the Transport (Re-Organisation of Coras Iompair
Eireann) Act, 1986, which was different in character. As no
agreement could be reached at local level the matter was referred
by the Association on 13th September, 1988, to the Labour Court.
The Company declined to attend a conciliation conference on the
grounds that the recruitment arrangements were necessitated by the
1986 legislation and were fully discussed beforehand with the
relevant unions. The Association on 27th February, 1989, referred
the matter to the Labour Court for investigation and
recommendation under Section 20(1) of the Industrial Relations
Act, 1969. Prior to a Court hearing on 18th April, 1989, the
Association agreed to be bound by the Court's recommendation.
ASSOCIATION'S ARGUMENTS:
3. 1. The Company, when informing the Association on 4th May,
1987, of its intention to recruit staff, did not apprise the
Association of the intention that successful applicants would
be placed on the first point of the salary scale and
consequently suffer a reduction in salary.
2. It is widely acknowledged that the clerical recruitment
procedures in the 1986 legislation are far less restrictive
than those which obtained under previous Transport Acts.
Indeed this is substantiated by the flexible two-tier nature
of the competition. There was no legal obstacle to the
Company implementing the previous arrangements which obtained
to harmonise the basic salary of successful internal
applicants.
3. There is no question of the Association seeking to have
the contracts of employment reviewed by the Court, as the
Company has suggested. What is being sought is a suitable
adjustment in the basic rate of salary for a number of staff.
This can be done within the salary scale contained in their
contracts of employment on the grounds of previous custom,
fair play and equity.
4. It is a widespread practice within the Company that
individual members of staff, in various grades, have retained
their salary level, on a personal basis, when moved to a post
with a lower scale. In fact there is an agreement insofar as
clerical and executive staff are concerned that these
individuals may be slotted into the first available vacancy in
their own grade, subject to suitability. The Company have
treated the successful internal applicants inequitably.
5. There is an agreement which stipulates that clerical
assistants recruited after 1st December, 1981, with
appropriate educational qualifications, may progress to
clerical officer grade. Clerical assistants who are
successful in progressing to the officer grade are placed on
the next highest incremental point, nearest to their existing
salary.
6. As a result of the Company's approach in this case a
further inequity arises. There are former telephonists
amongst the claimants who were placed on the first point of
the clerical officer scale when appointed. As a result of the
assimilation of grades their former colleagues can now apply
for clerical officer vacancies as they arise and if successful
will be placed on the next highest point on the scale, nearest
to their existing salary. This can result in the former
telephonist with more service as a clerical officer earning
less than her former colleague, who was promoted through a
different channel.
7. The Association requests the Court to take into
consideration the provisions of paragraph 14(5) of the
Transport (Re-organisation of Coras Iompair Eireann) Act,
1986, which states:-
"Save in accordance with a collective agreement negotiated
with any recognised trade union concerned, every person
who, immediately before the vesting day, is an officer or
servant of the Board shall not, while in the service of
the Board or a Company, as the case may be, receive a
lesser scale of pay or be brought to less beneficial
conditions of service than the scale of pay to which he
was entitled and the conditions of service to which he
was subject immediately before the vesting day."
COMPANY'S ARGUMENTS:
4. 1. At the interviews, which commenced on 25th June, 1987,
each internal applicant was specifically told that if
successful they would be placed on the starting point of the
appropriate salary scale. At the time of recruitment in
January, 1988, all persons who were offered and accepted
employment were given written terms of employment which
included the provision that starting pay would be at the
minimum point of the scale. These contracts were freely
entered into with advance knowledge of wage rates.
2. It was decided that as this was a recruitment procedure
and not a promotional one, that all persons offered employment
would be placed on the minimum point of the appropriate scale.
There is no agreement which states that any other arrangement
will apply. There is no provision in the 1986 legislation
where a person of their own choice, accepts alternative
employment offered, that they retain their existing scale of
pay or conditions.
3. None of the internal applicants appointed have repudiated
their contracts or sought to revert to a former grade. In
their new positions the successful applicants have secured
better promotional prospects and indeed a number have already
been promoted (details supplied to the Court).
4. The Association is confusing two separate issues. One is
recruitment to the clerical grades and the other issue is an
internal arrangement for the promotion of clerical assistants
to clerical officer grade and which is covered by an
agreement. This agreement provides that serving clerical
assistants may progress to the clerical officer grade. The
operation of this agreement was not altered by the recruitment
already referred to and this avenue of promotion is still open
to clerical assistants.
5. The statutory provision for holding limited competitions
has been repealed. The concept of limited competitions was
discriminatory and militated against "external" candidates who
although having the same or better educational qualifications
and/or relevant work experience found themselves being paid
less than internal applicants performing identical work or
worse still being denied employment because a certain number
of vacancies were reserved for internal candidates. If the
Company is required to place internal applicants on a higher
point of the scale it is clear that there would be economic
pressure on the C.I.E. Group, where everything else was equal,
to select an external candidate in preference to an internal
one. As a public sector employer the Company must maintain a
high standard of recruitment practice, ensuring preferential
treatment is not given to any particular group. The present
arrangements meet these standards.
6. In its recruitment the Company does not discriminate
between white and blue collar applicants. The earnings of
operative staff such as bus conductors are higher than the
earnings of clerical assistants. If the earnings of such
operative staff had to be taken into account when placing them
on a salary scale the vast majority would be placed on the
maximum of the scale. The Company, given its current
financial situation cannot afford to pay such high rates for
what in effect are junior clerical staff.
7. The Company has a difficulty in that it is acting on legal
advice and that the procedure and contents of the contracts
were approved by its legal advisor who also advises that the
arrangements are in no way illegal and are considered fair and
equitable.
RECOMMENDATION:
5. Having considered the submissions made by the parties, the
Court has had regard to the fact that the claimants were not
promoted in the normally accepted sense, but were appointed as a
result of open competition. In the circumstances they have to
accept the pay and conditions laid down by the Company in relation
to this open competition.
The Court, therefore, does not recommend concession of the
Association's claim.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
______________________
18th May, 1989. Deputy Chairman
B.O'N/J.C.