FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LIMERICK REGIONAL TECHNICAL COLLEGE (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - TEACHERS' UNION OF IRELAND DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation No. RC492/97 concerning non-renewal of contract.
BACKGROUND:
2. The Limerick Regional Technical College is a third level institution offering a range of courses at Apprenticeship, Certificate, Diploma, Degree and Post Graduate level.
The worker concerned has been employed by the College on a part-time basis since 1978, working a varying number of hours, primarily in the teaching of City & Guilds and Trade courses in the Communications/Mechanical/Electrical Departments.
In 1989/1990 he was appointed to a position of EPT (Eligible Part-Time Teacher) on an annual contract to teach 8 hours per week. The College terminated the contract in August, 1995 following the return to work after a career break of a permanent member of staff. It argues that there were no suitable teaching hours available to the worker for which he was qualified to teach. The Union claims that the level of academic work in question which is currently available is similar to the academic level of the work which has been taught by the worker for the past 18 years.
Local level discussions took place which resulted in agreement to refer the matter to a Mediator. Following a number of meetings between the parties the Mediator put forward the following proposals:-
(1) The worker would receive redundancy pay in respect of his EPT contract.
(2) He would be given as much examination supervision work as he was capable of doing during College Examinations.
(3) He would be employed for 4 hours per week in servicing equipment in the School of Art & Design for the 1997/98 academic year.
(4) In the future, the College would be committed at its discretion to consider the worker for part-time hours, if available in areas where he was qualified.
The proposals were rejected by the Union who referred the dispute to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
"In my view, the Union has not sufficiently allowed for the changes at the College in recent years. While the worker has suffered as a result of these changes, there is clearly no alternative for the College but to face up to the challenges involved while at the same time doing the best it can for the worker and anybody else who is unfortunate enough to be affected in this way.
The question of the worker's working hours has remained unresolved despite great efforts by the parties to resolve it. It is unfortunate that the Union side were unable to accept the Mediator's proposals as these seem to me to go a long way towards meeting the Union's demands, given the changed status and role of the College and the need to change and develop even more in the future.
The following Recommendation, therefore, is intended as a final effort to resolve the matter and I urge both parties to consider it carefully.
In the circumstances I recommend that Limerick Regional Technical College and the TUI should accept the Mediator's proposals, subject to the following amendment: that the worker be engaged on the servicing of electronic equipment for six hours per week rather than for four, and this to be for three academic years rather than for one".
The worker was named in the Recommendation.
The Rights Commissioner's Recommendation was appealed by the Union to the Labour Court on the 5th of August, 1997 under Section 13(9) of the Industrial Relations Act, 1969. The Labour Court heard the appeal in Limerick on the 22nd October, 1997.
UNION'S ARGUMENTS:
3. 1. The worker has long experience of teaching in Limerick RTC. There are no adverse reports or complaints about his performance as a teacher. This has been accepted by the College on a number of occasions, most recently at the Rights Commissioner hearing.
2. He has a range of qualifications which were seen by the City of Limerick VEC as appropriate to recommend him for appointment to a lecturer position in a permanent capacity and were also seen as appropriate by the Co. Carlow VEC for appointment also in a permanent capacity to Carlow RTC. These qualifications were however deemed by the Department of Education not to be adequate for permanent appointment but are seen by the Department as adequate for temporary teaching.
3. The Mediator's Recommendation was rejected on the basis that it did not contain a commitment to provide teaching hours.
4. In regard to the comparability of the worker's qualification i.e. a Higher National Certificate and that of the Senior Trades Certificate, the Union has been advised by the Department of Education that the 2 qualifications are of a similar level. The Senior Trades Certificate may be somewhat more acceptable for teaching the practical elements of the course while the Higher National Certificate qualification, having a more theoretical content, would be more acceptable for the theory subjects. The Department advises that the Higher National Certificate (the qualification held by the worker) is acceptable for the teaching of electrical apprentices on a part-time basis provided the subject of the Higher National Certificate is electrical science. In the worker's case this is so.
5. The Union does not contest the fact that a permanent member of staff returned from a five year career break in 1995 and that as a result of that it was not possible to give the worker those identical hours which he had taught before that time. The Union's argument in this case is that there are other hours over and above those being taken by the permanent member of staff which are at present being taken on a part time basis which would be appropriate to the worker concerned.
6. The Union does not dispute that the qualifications held by the worker are appropriate for permanent appointment in an RTC, the Union accepts the statement of the College that to become a permanent teacher of trade subjects or a fully qualified EPT in the same area that the trades certificate and five years experience is required. The contention of the Union is that while the worker is not qualified for permanent appointment he is qualified to teach some subjects in a part time capacity.
7. There have been hours in the past academic year which have been taught in a part-time capacity for which the worker is considered by the Department of Education to be qualified. These hours have been assigned on a part-time basis to others who are less qualified and have much less experience or commitment to the College. The College has failed in its responsibility to the worker in denying him these hours and therefore the Union requests the Labour Court to make a recommendation that there are and have been hours which are appropriate to the worker and which could have been the basis of an EPT contract , that he be given these hours in the future on a contract basis, and that he be compensated for the loss of these hours since 1995.
COLLEGE'S ARGUMENTS:
4. 1. The nationally agreed arrangement states that in respect of EPT's, "they are in practice re-employed at the beginning of a new session in the College where the same service is to be provided on a part-time basis". As there are no suitable teaching hours available for the worker for which he is qualified to teach, there is insufficient work available. The hours previously taught are being provided by a permanent employee and therefore the "same service" cannot be on a "part-time basis". As such, the College has abided fully by the terms and conditions of the EPT Agreement.
2. Any suitable part-time teaching hours which became available over the last 2 years have been offered to the worker. One offer was accepted by him (4 part-time hours in the 1995/96 academic year), and one offer was rejected on his behalf by the TUI. At all times therefore, the College has attempted to facilitate him within the limits of the hours available. Areas in which the worker has qualifications to teach are declining in number. The College must abide by Agreements where precedence for hours is to be given to permanent staff first.
3. There are insufficient suitable hours available for which the worker is qualified to ensure him in an EPT contract. The college has made several attempts to resolve this situation, up to and including acceptance of the Mediator's proposal. This proposal represented a comprehensive range of concessions to the worker in the circumstances where an EPT contract is not renewable. The College believes it was a reasonable accommodation in the circumstances and the Rights Commissioner clearly found likewise.
4. It is clear that there are no suitable teaching hours available for the worker for which he is qualified to teach. Given the EPT Agreement, and in view of the fact that the areas in which the worker is qualified to teach are declining in number, the Mediator's proposals represented an appropriate solution to this matter. This was recognised by the Rights Commissioner who, in an effort to resolve the matter, recommended that the worker be given additional hours in servicing equipment for a longer period of time. The College is prepared to accept this Recommendation in the spirit of good industrial relations, though it clearly represented the limit of what it could do in the circumstances. As two external parties have adjudicated on this matter, the College believes that the Rights Commissioner's Recommendation should stand. It respectfully requested the Court to recommend accordingly.
DECISION:
The Court having considered all the information supplied, written and oral finds that the Rights Commissioner's Recommendation is not unreasonable.
The Court would entreat the College to try to implement the teaching hours of the Recommendation, as far as possible while accepting there are major difficulties in implementation.
The Court upholds the Rights Commissioner's Recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
18th November, 1997______________________
F.B./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.