Labour Court Database __________________________________________________________________________________ File Number: CD95283 Case Number: AD9559 Section / Act: S13(9) Parties: UDARAS NA GAELTACHTA (IBEC) - and - MANUFACTURING SCIENCE FINANCE |
Appeal of Rights Commissioner's Recommendation No. CW96/95 concerning a dispute regarding the pay and conditions of a worker.
Recommendation:
The Court notes that due to an unfortunate error Udaras did not
attend the Rights Commissioner's hearing. As a result the Court
is satisfied that some important facts were not available to the
Commissioner.
Having considered all the evidence the Court has concluded that it
would not be justified in upholding the Commissioner's
recommendation with regard to granting staff status. The Court
accordingly upholds the Udaras appeal on this point.
With regard to the rate of pay issue, the Court is of the view
that taking into account the nature of the claimant's duties, he
should be paid at a rate equivalent to 95% of the Foreman's rate
with appropriate retrospection. The Court accordingly amends the
Rights Commissioner's recommendation in relation to pay.
The Court so decides.
Division: Ms Owens Mr Pierce Mr Walsh
Text of Document__________________________________________________________________
CD95283 APPEAL DECISION NO. AD5995
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
UDARAS NA GAELTACHTA
AND
MANUFACTURING SCIENCE FINANCE
SUBJECT:
1. Appeal of Rights Commissioner's Recommendation No. CW96/95
concerning a dispute regarding the pay and conditions of a
worker.
BACKGROUND:
2. The worker concerned in the dispute commenced employment with
the Udaras in October, 1975 as a maintenance worker. He was
based in Gweedore, County Donegal. The worker claims that on
commencing employment he was appointed a member of staff.
Management's position is that there is no documentary
evidence to support the worker's claim. Local level
discussions took place but no agreement was reached and the
matter was referred to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner's
findings and recommendation are as follows:-
"Findings
I accept that the worker was appointed a member of
staff in 1975 at an annual salary of #3,000.
Documentary evidence shows that he received an increase
to #3,981 in April, 1978. Mr. Mahon maintained that
this salary indicated the worker's position on the
scale appropriate to a grade 4 (or grade 5) staff
member. I consider that the worker and the Union have
given me sufficient evidence (which stands
uncontradicted) to find in favour of the claim.
Recommendation
I recommend that the Udaras confirms the staff status
of the worker and that he is assimilated onto the
appropriate grade at a point equivalent to the weekly
pay of a Foreman with effect from January, 1995."
The worker was named in the recommendation. Udaras Na
Gaeltachta was not represented at the Rights Commissioner's
hearing.
The Rights Commissioner's recommendation was appealed by both
parties to the Labour Court on 4th May, 1995 under Section
13(9) of the Industrial Relations Act, 1969. A Labour Court
hearing took place in Galway on 19th July, 1995.
UNION'S ARGUMENTS:
3. 1. The worker's status as a member of staff was changed
without agreement to that of a weekly paid employee
which involved the loss of certain conditions of his
employment i.e., pension entitlements. This occured in
1977 and the worker has raised the matter on various
occasions since that time.
2. The worker made contributions to the staff pension
scheme for approximately 6 to 9 months. These
contributions were repaid to the worker without any
reference to the question of the status of his
employment being made.
3. The worker has held many positions of responsibility
since his appointment and has always reported to
management personnel.
4. During the period of the worker's employment he has had
responsibilities with foremen's status as follows:-
(a) The up-keep of the water mains on the Gweedore
Industrial Estate until 1993.
(b) The lighting system on the Gweedore Industrial
Estate and the Clady pumping station. He is not
directly supervised in the performance of these
duties.
(c) The worker has had responsibility for supervising
effluent plants at Downings, Kilcar and also
Dungloe since 1992.
5. The worker was responsible for the Gweedore estate
effluent station from the date of his appointment until
a manager was appointed with an appropriate degree-level
qualification in 1980. In 1982, responsibility for the
effluent station was given back to the worker. In 1984,
an effluent station manager with appropriate
degree-level qualifications was again appointed but the
worker continued to be responsible for the electrical
and mechanical maintenance of the plant.
6. The worker is carrying out certain installation work and
in other cases is responsible for the job specification
for works carried out by outside contractors and
supervision of that work. The amount of this work can
be appreciated from the fact that there are
approximately 25 factory units at Gweedore and other
factory units at Annagry, Kilcar, Downings, Falcarragh
and Fintown.
7. The worker was requested by management in 1994 to allow
them to use his name and technical qualifications as the
"Qualifying Manager" for the purpose of registering
Udaras na Gaeltachta as an Electrical Contractor on the
Register of Electrical Contractors of Ireland. Udaras
subsequently decided not to proceed with this
application but in requesting the worker to submit
himself as the person with the appropriate technical and
managerial responsibilities to justify their application
they were recognising the responsibilities which he held
for ensuring that electrical and maintenance work
carried out on individual estates owned by Udaras na
Gaeltachta were carried out to the appropriate technical
and safety standards. It is the Union's view that the
decision not to proceed with the application is related
to the attempts by management to deny him the status and
pay levels to which his job entitles him.
COMPANY'S ARGUMENTS:
4. 1. Management reject the worker's claim that he was
originally a member of staff. The worker's records
indicate that he was never assimilated onto the staff as
per procedures at that time. The staff pension scheme
is contributory to all permanent staff and records show
that no contributions were deducted on behalf of the
worker.
2. In the circumstances the Court is requested to overturn
the Rights Commissioner's Recommendation and recognise
that the claimant is an hourly paid worker of the Udaras
since 1975.
3. The Union in accordance with the agreement between the
Irish Congress of Trade Unions and the Government is
prohibited from pursuing this claims on the grounds that
this type of claim is prohibited by the National
Agreement of October, 1991, Clause 1.3, states "it is
accepted as fundamental to the rationalisation process
that no claims will be made for the restoration of
previously held differentials or allowances."
4. Udaras was willing to display flexibility prior to the
Rights Commissioner's hearing. Udaras understood that
the main point at issue was the restoration of the
worker's differential over that of the craftsmen and had
been pursuing a settlement along those lines. Udaras is
still prepared to make a meaningful offer in that
instance.
RECOMMENDATION:
The Court notes that due to an unfortunate error Udaras did not
attend the Rights Commissioner's hearing. As a result the Court
is satisfied that some important facts were not available to the
Commissioner.
Having considered all the evidence the Court has concluded that it
would not be justified in upholding the Commissioner's
recommendation with regard to granting staff status. The Court
accordingly upholds the Udaras appeal on this point.
With regard to the rate of pay issue, the Court is of the view
that taking into account the nature of the claimant's duties, he
should be paid at a rate equivalent to 95% of the Foreman's rate
with appropriate retrospection. The Court accordingly amends the
Rights Commissioner's recommendation in relation to pay.
The Court so decides.
~
Signed on behalf of the Labour Court
2nd August, 1995 Evelyn Owens
F.B./D.T. ____________
Chairman