Labour Court Database __________________________________________________________________________________ File Number: CD929 Case Number: AD92152 Section / Act: S13(9) Parties: DUNDALK URBAN DISTRICT COUNCIL - and - UNION OF CONSTRUCTION, ALLIED TRADES AND TECHNICIANS |
Appeal by the Council against Rights Commissioner's recommendation number S.T. 375/91 concerning position as temporary clerk of works.
Recommendation:
5. Having considered the submissions of the parties, the Court
upholds the Rights Commissioner's recommendation on the
understanding that the Council determine the staff deployment on
the scheme and that the claimant be paid the Town Overseer Rate
for the duration of the scheme.
The Court so decides.
Division: Mr Heffernan Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD929 APPEAL DECISION NO. AD15292
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: DUNDALK URBAN DISTRICT COUNCIL
and
UNION OF CONSTRUCTION, ALLIED TRADES AND TECHNICIANS
SUBJECT:
1. Appeal by the Council against Rights Commissioner's
recommendation number S.T. 375/91 concerning position as temporary
clerk of works.
BACKGROUND:
2. The worker concerned is employed by the Council as a foreman.
In 1987, the Council embarked on a scheme of panel replacements
for 500 semi system-built houses which were constructed in the
1960's. The worker concerned was appointed to oversee the
operation of the work which is being carried out by private
contractors on a phased basis. The worker was appointed to the
position of temporary clerk of works and paid the appropriate rate
of pay for that grade. He held the position until March, 1991
when work on the scheme was temporarily halted. During the
periods when no panel replacement contracts were in progress, due
to an administrative error the worker was paid the enhanced rate
of pay. The worker was subsequently advised of the error. When
work on the scheme restarted in October, 1991 the Council's
permanent clerk of works was appointed to supervise the panel
replacement work. The Union claims that there is no justifiable
reason why the worker concerned cannot and should not continue in
the position while panel replacement contracts are in progress.
The Council rejected the claim and the matter was referred to a
Rights Commissioner for investigation and recommendation. On 18th
November, 1981 the Rights Commissioner recommended as follows:
"I recommend that the claimant is placed in the position
claimed and that he repays the sum outstanding at a rate of
£3 per week whilst he is so engaged in the position".
The Council appealed the recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. The Court
heard the appeal on 2nd April, 1992.
COUNCIL'S ARGUMENTS:
3. 1. The permanent clerk of works was assigned the duty of
supervising the panel replacement scheme in October, 1991 in
order to re-deploy staff to the best advantage, having regard
to strict financial constraints and to ensure that the local
authority housing maintenance programme progressed with
adequate supervision.
UNION'S ARGUMENTS:
4. 1. In 1987 the Council sought a competent person from within
its own organisation to ensure that the replacement work would
be carried out to an acceptable standard and offered the
worker the position of clerk of works.
2. The worker has carried out the duties of clerk of works
practically on a full-time basis since 1987. The worker has
carried out his duties in the best interests of the Council.
There were no complaints from the Council regarding the
worker's ability to do the job.
3. Manager's order 37/88, dated 1st February, 1988, indicates
that the worker while acting clerk of works would also
continue his duties as housing foreman and this was the case
until the middle of 1991, when the worker was informed that he
would no longer enjoy the rate of pay of the clerk of works.
DECISION:
5. Having considered the submissions of the parties, the Court
upholds the Rights Commissioner's recommendation on the
understanding that the Council determine the staff deployment on
the scheme and that the claimant be paid the Town Overseer Rate
for the duration of the scheme.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
----------------
24th April, 1992. Chairman
F.B./J.C.