FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SCOIL CARMEL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal by the Union Against Rights Commissioner Recommendation No. 766/97.
BACKGROUND:
2. The appeal concerns a worker who has been employed as a school secretary since, March, 1977. Since that time she has enjoyed certain conditions relating to annual leave and school closure leave, which averaged 49 days per year over the period of the worker's employment. In May, 1997 the worker was informed by the School Principal that, following correspondence with the Department of Education, the worker's fixed annual leave entitlement would be 19 days and that school closure leave would not apply. The Union claimed that the worker was unfairly treated and sought that the status quo be maintained. Management rejected the claim. The dispute was referred to a Rights Commissioner in October, 1997, however, following a suggestion from him the parties entered into local negotiations to consider the possibility of some form of agreed flexibility regarding annual leave which would satisfy the Department's concerns and also to consider the question of compensation. These discussions were not successful. The dispute was again referred to the Rights Commissioner in June, 1998. On the 28th July, 1998 the Rights Commissioner issued his recommendation as follows:
In the circumstances, I recommend as follows:
(a) that the worker and IMPACT should accept that all relevant Circulars from the Department of Education and Science should apply to the worker from a current date, including in particular all Circulars dealing with annual leave;
(b) that the parties should meet at an early date to agree local arrangement for dealing with the question of the worker's attendance at the School, these arrangements to be based on the proposals discussed at the Hearings;
(c) that both parties should commit themselves to the maximum co-operation and flexibility in their dealings with each other;
(d) that, in return for an agreement as above, Scoil Carmel should offer, and the worker and IMPACT should accept, a once-off lump sum of £2,000 in full and final settlement of this dispute.
(The worker was named in the Rights Commissioner's recommendation.)
On the 12th August, 1998 the Union appealed the Rights Commissioner's recommendation to the Labour Court. The Court heard the appeal in Limerick on the 8th October, 1998.
UNION'S ARGUMENTS:
1. The conditions enjoyed by the worker by custom and practice for over twenty years cannot be unilaterally changed. Up to May, 1997, Scoil Carmel expressly accepted that the worker's conditions of employment in relation to annual leave and school leave were those agreed between the worker and the school in 1977.
2. From 1977 and at all material times to date the worker was solely employed by Scoil Carmel. The source of funding is not relevant to the contract of employment freely entered into between the worker and the school. The Grant in Aid Scheme (which provides clerical assistance to the Boards of Management of National Schools and the Authorities of recognised Secondary Schools), and the provisions thereof are solely a matter for Scoil Carmel and the Department of Education and Science. The worker was employed prior to the Grant in Aid Scheme being introduced in 1978.
3. The worker's conditions of employment should be maintained on a red circle basis alternatively, without prejudice the worker should be paid adequate compensation for the proposed loss to the worker. The proposed change will result in the loss of 28 days per annum. The worker has a potential 22 years further service with Scoil Carmel. The potential loss is 616 days leave (28 x 22). Her rate of pay is £49.52 per day. The proposed loss per year is £1,386.80 and over 22 years is £30,500.60.
4. The worker wishes to maintain her leave entitlement, which she has held for over 21 years. Without prejudice to this, if Scoil Carmel wishes to reduce the worker's leave from 49 days to 19 days per annum adequate compensation is essential.
5. The Union rejected the Rights Commissioner's recommendation as the parties were unable to resolve the issue suggested at part B. Also the compensation award (part D) is grossly inadequate considering the worker's enjoyment of 21 years annual leave and school closure leave at the rate of 49 days per annum. The level of compensation awarded should reflect the level to which her conditions will be worsened.
EMPLOYER'S ARGUMENTS:
1. When the matter of the worker's annual leave entitlement was brought to the Principal's attention by the Department of Education and Science in 1997 she took immediate steps to remedy the situation. The Department of Education and Science has set out clear regulations with respect to the pay and conditions of school secretaries and any deviation from this requirement will result in non-payment of the grant for the secretary's salary.
2. Since 1977, the school has been in breach of the regulations by allowing the worker to take leave far in excess of her entitlements to the extent that the number of days taken amount to 20% of the working year.
3. Scoil Carmel must accept the Department's regulations to continue to receive the grant. This particular grant, which provides for payment of a school secretary in accordance with pay and conditions of administrative grades in the local authorities was discontinued in 1982 and only applies to personnel who were employed before that date. If the School does not receive the grant it will not be in a position to continue to pay the claimant's salary. The only option at that point would be redundancy. Management does not wish to contemplate this possibility.
4. Scoil Carmel has accepted the Rights Commissioner's recommendation and considers it to be the most expedient way of resolving this very difficult matter.
DECISION:
The Court has given consideration to the appeal by the Union against the Rights Commissioner's recommendation in this case and to the submissions and oral evidence presented at the hearing
The Court finds that the Rights Commissioner's recommendation of a lump sum of £2,000 should be substituted by a sum equating to two years the annual loss of the leave entitlement, all other aspects of the Rights Commissioner's recommendation should be adhered to.
Point (c) of the recommendation details the requirement for the parties to commit themselves to the maximum co-operation and flexibility, the Court recommends that discussions should commence without delay on this important issue.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th October, 1998______________________
TOD/BCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.