Labour Court Database __________________________________________________________________________________ File Number: CD93179 Case Number: AD9333 Section / Act: S13(9) Parties: EOLAS - and - THREE WORKERS;BYRNES, COLLINS, NOONAN SOLICITORS |
Appeal against Rights Commissioner's Recommendation No. C.W. 415/92 concerning the restoration of a higher duties allowance (H.D.A.) to 3 workers.
Recommendation:
5. The Court has considered the submission from the parties and
agrees with the Rights Commissioner's findings in relation to the
appellants claim for continuance of their Higher Duties Allowance.
The Court would also state that in its view the Rights
Commissioner's recommendation dealt adequately with the claim for
appointment to Assistant Chief Executive Grade and that it would
not be justified in upholding this point of the appeal.
The Court accordingly upholds the Rights Commissioner's
recommendation and so decides.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD93179 APPEAL DECISION NO. AD3393
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: EOLAS
and
THREE WORKERS
(REPRESENTED BY BYRNES, COLLINS, NOONAN SOLICITORS)
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No. C.W.
415/92 concerning the restoration of a higher duties allowance
(H.D.A.) to 3 workers.
BACKGROUND:
2. 1. IN 1988, the Board of Eolas approved a new management
structure which inter alia appointed the 3 workers to
positions of Assistant Chief Executive. The positions were
conditional on approval from the parent Government Department.
The workers were paid a higher duties allowance to compensate
for their extra duties.
2. Eolas sought sanction from the Department of Industry and
Commerce (now Enterprise and Employment) for the new structure
on 26th September, 1988. Sanction for the structure was
refused by the Department on 6th April, 1989. Correspondence
and discussions between Eolas and the Department continued
(details supplied). The Department's final position in
respect of the 3 workers was conveyed in a letter to Eolas on
23rd September, 1992. The Department ordered that the Higher
Duties Allowances should cease from 1st October, 1992. The
workers' positions were to be considered as part of a review
of the structures of Eolas by the Irish Productivity Centre.
3. The workers referred their claims to the Rights
Commissioner Service for investigation and recommendation.
The parties agreed that a single recommendation could cover
the 3 individual disputes. A Rights Commissioner's
investigation took place on 18th December, 1992. The Rights
Commissioner's findings and recommendation as follows issued
on 27th January, 1993:
"FINDINGS
I believe that a single recommendation is appropriate to
the three individuals. I am not in a position to
comment on what might be considered appropriate
emoluments and allowances in this dispute, because I do
not have the professional expertise or knowledge on
which to base any conclusions. Perforce my remarks must
be restricted to a general industrial relations
framework. The three workers benefited from H.D.A. for
a period from September, 1988 until October, 1992. The
cessation of the allowance from that date is clearly an
unilateral breach of their contracts of employment even
though they were ostensibly "conditional". Any normal
I.R. practice could not condone such an immediate and
substantial action.
*RECOMMENDATION:
I recommend that Eolas restores the H.D.A. with
retrospective effect to October, 1992 and that any
proposals emanating from I.P.C. review which affect the
three workers are negotiated in a proper manner".
4. The Rights Commissioner's Recommendation was appealed to
the Labour Court by the 3 workers under Section 13(9) of the
Industrial Relations Act, 1969. The Labour Court heard the
appeal on 15th April, 1993.
WORKER'S ARGUMENTS:
3. 1. The workers are seeking the implementation of the Rights
Commissioner's Recommendation in respect of the payment of the
H.D.A. with retrospective effect to 1st October, 1992. Eolas
is also required to recognise that the posts are at Assistant
Chief Executive grade and that promotion to the grade should
have taken effect from September, 1988.
2. The appointments were agreed in 1988 with the only
condition being that the appointment to the post of Assistant
Chief Executive was conditional on the consent of the
Minister. The payment of the H.D.A. was never subject to the
consent of the Minister nor was this consent necessary
(details supplied). The only condition attaching to the
H.D.A. was that when the substantive appointments to Assistant
Chief Executive were made, the payment of the H.D.A. would
cease.
3. No justification has been given for the removal of the
H.D.A. A unilateral decision was taken by the Minister to
breach the workers' contracts as varied. The positions held
by the workers from 1980 to date are at Assistant Chief
Executive level. This has been confirmed by a recent review
by the Irish Productivity Centre and the posts should now be
recognised retrospectively to the time of the workers'
appointments in 1988.
EOLAS'S ARGUMENTS:
4. 1. Eolas has been specifically directed to withdraw the
H.D.A. from the 3 workers from 1st October, 1992. Eolas has
no alternative but to comply as it would be in breach of
paragraph 3 of Section 24 of the 1987 Science and Technology
Act (details supplied).
2. The 3 cases have been included in a review carried out by
the Irish Productivity Centre and the results are with the
Department of Finance, awaiting decision. Eolas cannot
continue to act contrary to a clear instruction concerning
breaches of Government Policy.
DECISION:
5. The Court has considered the submission from the parties and
agrees with the Rights Commissioner's findings in relation to the
appellants claim for continuance of their Higher Duties Allowance.
The Court would also state that in its view the Rights
Commissioner's recommendation dealt adequately with the claim for
appointment to Assistant Chief Executive Grade and that it would
not be justified in upholding this point of the appeal.
The Court accordingly upholds the Rights Commissioner's
recommendation and so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
_________________
30th April, 1993. Deputy Chairman
J.F./J.C.