Labour Court Database __________________________________________________________________________________ File Number: CD90716 Case Number: AD9138 Section / Act: S13(9) Parties: UNIVERSITY COLLEGE GALWAY - and - SERVICE INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's Recommendation S.T. 46/90 by both the College and the Union regarding the level of salary of a worker.
Recommendation:
5. Having considered the written and oral evidence presented by
the parties, the Court is of the view that the pay scales for
research assistants were designed for short-term employment and
were developed in the context of other grant aid being available
and/or of the benefits of the work experience involved for the
pursuit of posts in higher-level research.
The College's record shows, however, that the claimant has been
employed as Research Assistant for an unbroken period of close on
seven years, in addition to earlier service, and in the
circumstances the Court does not regard his existing salary scale
as appropriate. As he is engaged on work similar to that which he
undertook as a Technician, the Court considers that he should be
placed on the Technician scale. His entry point on the scale
should be at least one increment on that scale above his present
salary. The effective date should be the anniversary date in May
1991 of the 1989 Agreement.
Accordingly the Court upholds the recommendation of the Rights
Commissioner.
The Court so decides.
Division: CHAIRMAN Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD90716 APPEAL DECISION NO. AD3891
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT 1969
PARTIES: UNIVERSITY COLLEGE GALWAY
(Represented by the Federation of Irish Employers
AND
SERVICE INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation S.T.
46/90 by both the College and the Union regarding the level of
salary of a worker.
BACKGROUND:
2. The worker commenced employment with the College as a trainee
technician. He was made redundant as a technician in 1983. Since
then, with periods of unemployment (details supplied to the Court)
he has been employed as a research assistant on a contract basis
with the Shellfish Research Laboratory (SRL) which is part of the
College's Department of Zoology. The SRL is involved in research
and secures contract work from outside organisations. The worker
had been seeking through his Union an increase in his level of
salary.
In 1989 after a dispute, an agreement was reached on pay and
conditions for all contract staff at the SLR. As part of this
agreement the worker's case was referred to a Rights Commissioner
for investigation and recommendation. The Rights Commissioner
having investigated the dispute on 25th May, 1990 in Galway,
issued the following recommendation on 13th June, 1990.
"RECOMMENDATION
The Union and its representatives have expended a phenomenal
amount of time and energy in keeping the operation going and
in processing the claimant's interests. The claim represents
an increase of #1,500 per annum to the claimant.
It seems to me to be an extraordinary employment relationship
in which such a highly qualified specialist can be employed
on a month by month basis followed by, or underwritten by
funding on a year by year basis from various agencies
including a consortium of State Semi-State and Private
Industry. Clearly the claimant is not getting the "rate for
the job". The only arguments advanced by the College related
to the financial side only.
It seems to me that in these circumstances the only solution
is for the College to state its requirements to the financing
agency and these requirements should include the proper
grading of the claimant as a Technician, a grading he held in
1983 and which duties and responsibilities he continues to
carry out.
Accordingly I recommend that the claimant is returned to this
grade of pay as and from the next anniversary date of the
implementation of the "rationalisation contract package" in
1989. In view of the severe budgetary considerations I
cannot recommend any retrospection.
Both the Union and the College rejected the recommendation and
appealed it to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1946. A Court hearing was held in
Galway on 21st March, 1991.
UNION'S ARGUMENTS:
3. 1. The worker has been employed by the College for 14 years
unbroken service except for a short period. The value and
skill of his work to this day never fell below that of a
technician grade and unfortunately despite constant
representation since 1983 (details supplied to the Court) he
still does not receive the rate for the job. A Rights
Commissioner's hearing which had been sought since 1988 was
finally achieved in May 1990. The Rights Commissioner
recommended that the worker be given the proper grading as a
technician, a grading he held in 1983 and which duties and
responsibilities, he continues to carry out.
2. This recommendation is being appealed because it fails
to address the placing of the worker on an ongoing basis on
the College's technician scale and in addition given the
length of time this case has been pursued, the failure to
grant any retrospection is unacceptable. The worker is in
the unique position of being a career worker in an area where
short term employment by choice is the norm. It is
frequently the case that workers on research projects will
pass on to other areas in a relatively short time. It is not
reasonable that the worker should be penalised by not getting
the rate for the job, for choosing to work as a technician in
marine research. There are very few such facilities in the
country. It should be noted that the College has never
argued against the merits of the case, but only of their own
financial position.
COLLEGE'S ARGUMENTS:
4. 1. The worker was employed as a technician by the College
from 1977 until 1983 when he was made redundant and received
a payment accordingly. He was re-engaged after two months as
a temporary research assistant on a contract basis and save
for another period of unemployment in 1984, has continued on
renewed contracts to date. The worker freely accepted the
post as a temporary research assistant on a contract basis
with totally different conditions of service from that of the
Colleges' technician grade. The position is dependent on the
SRL securing outside contracts to do research work. There is
a fixed sum agreed and employment rates are negotiated on the
basis of the funding available for the particular project.
2. Up to the Rights Commissioner's hearing the Union sought
only a salary increase for the worker. The hearing was the
first application to have the worker's pay related
retrospectively to the technician grade. The Rights
Commissioner's recommendation in this respect is strongly
disputed by the College. The suggestion that a temporary
employee engaged on a research contract funded from outside
sources should be granted a pay relativity with a permanent
grade has enormous implications for research employment in
all third level institutions. In addition, this would put
the worker in a privileged position to the 3 other employees
in the laboratory. An agreement was achieved after much
difficulty in 1989 whereby a pay structure was put in place
which was tailored to provide the best possible remuneration
package to contract employees and which would enable the SLR
to compete realistically for contract research work in the
1990's. Disturbing this agreement would have grave
implications for the College's ability to compete for
contracts and consequently maintain employment.
3. The College does not accept the Rights Commissioner's
recommendation because of its repercussive implications
leading to difficulty in securing contracts which are freely
negotiated. The College is not in a position to put
restrictive conditions which do not have to be accepted by
competing tenders. Pay rates are always related to the level
of finance available from grant source and it is usually
impossible to negotiate in advance a commitment to pay
projected increases such as those due under national pay
programmes. Management did however seek to resolve the
dispute once and for all after the issue of the Rights
Commissioner's recommendation and offered to favourably
consider raising the upper limits of all salary scales by 2
increments and placing the worker on top of the revised
scale. This was rejected by the Union because it considered
that it did not address the specific problem.
DECISION:
5. Having considered the written and oral evidence presented by
the parties, the Court is of the view that the pay scales for
research assistants were designed for short-term employment and
were developed in the context of other grant aid being available
and/or of the benefits of the work experience involved for the
pursuit of posts in higher-level research.
The College's record shows, however, that the claimant has been
employed as Research Assistant for an unbroken period of close on
seven years, in addition to earlier service, and in the
circumstances the Court does not regard his existing salary scale
as appropriate. As he is engaged on work similar to that which he
undertook as a Technician, the Court considers that he should be
placed on the Technician scale. His entry point on the scale
should be at least one increment on that scale above his present
salary. The effective date should be the anniversary date in May
1991 of the 1989 Agreement.
Accordingly the Court upholds the recommendation of the Rights
Commissioner.
The Court so decides.
~
Signed on behalf of the Labour Court
7th May, 1991 Kevin Heffernan
J.F. / M.O'C. _______________
Chairman