FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TEAGASC - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Alleged refusal to honour an agreement concerning a worker
.
BACKGROUND:
2. The worker concerned is employed as a Grade IV in the Industrial Relations Section of Teagasc. In March, 1996, the Department of Finance (CMOD) carried out a review of the clerical administrative staffing in Teagasc. The approved complement of staff in Industrial Relations is a Grade V (occupied by a Grade VI) and a Grade IV occupied by the worker concerned. In October, 1996 Teagasc granted study leave to the other worker for a Higher Degree Course lasting four years. The worker concerned has undertaken the duties which had been performed by the Grade VI since October, 1996. In November, 1996 he claimed payment of the Acting Grade V allowance on the basis of the other worker's absence and in September, 1997 raised the issue of his grading to Grade V on a personal basis. The Union claims that in 1998 Management made an offer to the worker to pay the acting allowance from the 1st of July, 19997 and upgrading to Grade V with effect from the 1st of January, 1999. The worker accepted the offer but the Union claims that management reneged on the agreement. Management stated that no agreement was entered into in relation to the upgrading and that the worker was paid the acting allowance when the other worker was absent, in accordance with regulations. The Union stated that because of the delay by Teagasc in processing the worker's claim that it was forced to refer the issue to the Labour Court in April, 1999 under Section 20(1) of the Industrial Relations Act, 1969. The Union agreed to be bound by the Court's recommendation. A Court hearing was held on the 2nd of June, 1999.
UNION'S ARGUMENTS:
3. 1. The claimant has undertaken the full duties of the Grade V and Grade IV posts in the Industrial Relations Unit as identified in the CMOD report since the 7th of October, 1996. It may have been Management's initial intention that the staff member on study leave would work in the Industrial Relations area during holiday periods but this was seen as clearly impractical at an early stage given the nature of industrial relations work and this individual has had no involvement in the Industrial Relations area since going to College. The Director of Administration and the Head of Personnel have accepted that the claimant has undertaken the duties for the full period.
2. After almost three years and following notification that this case was being referred to the Labour Court, Management wrote to the claimant two weeks ago to the effect that he would be paid an acting allowance. However, this payment would only be in respect of the periods of absence from Teagasc of the staff member at College even though he was permanently absent from the Industrial Relations Unit. The claimant has had to carry a huge level of responsibility and workload since October, 1996. He has had day to day responsibility for the processing of all claims/issues in Teagasc reporting directly to the Head of Personnel. He has not had the assistance of another staff member despite this period coinciding with the massive volume of work created by PCW Restructuring Agreements. These agreements have dominated industrial relations matters in all Semi-State organisations in the last two/three years. In no other Semi-State organisation of similar size was one worker left with sole responsibility for drafting these agreements in line with Department of Finance cost parameters, agreeing them with the relevant Trade Unions in consultation with the Departments of Agriculture and Food and Finance, and arranging their implementation. For example, the Industrial Relations Unit of FÁS is staffed by a Grade VI and two Grade V's. At the request of Teagasc management the claimant also assisted a number of other Semi-State organisations with the drafting of their PCW Pay Agreements.
3. In the light of the workload of the claimant the Union felt is was pushing an open door when it approached the Director of Administration in mid-1997 with a view to having the claimant regarded to Grade V level. He confirmed he was actively seeking a way to bring this about and had asked the Head of Personnel to try to identify a vacant post which could be used for this purpose. In a telephone conversation on the 7th of April, 1998 he confirmed such a post had been identified but stated "to take a final position on the case we require final agreement from the Department of Agriculture and Food on numbers within grades in Teagasc." The Union and the claimant were of the view that all that was required to finalise his regrading was confirmation from the Department that the vacant post identified by the Head of Personnel at the Director of Administration's request existed within the Staff Establishment.
4. Approximately, a month after the confirmation had been received the claimant met with the Director of Administration and requested him to take steps to finalise the matter prior to his (the claimant's) departure on annual leave at the end of that week. He gave an absolute guarantee that he would ensure that the claimant had his response before Friday. Late of Friday afternoon the Head of Personnel proposed to the claimant that he accept an acting allowance from the 1st of July, 1997 and his regrading to Grade V with effect from the 1st of January, 1999. Obviously this constituted a lot less than the worker felt he was entitled to but he indicated his acceptance in order to finalise the matter and avoid its referral through the industrial relations machinery. Teagasc management moved without explanation or apology from the position set out above to the position set out in the Director of Administration's letter dated the 7th of April, 1999 i.e. "to progress the matter further, it would, therefore, be necessary to conduct an objective assessment of the grading of the post in question."
Teagasc implicitly confirmed the accuracy of the Union's position by stating in the very same letter that "the availability of a post, while possibly offering a mechanism for the eventual implementation of an agreed solution, is not the central issue at this stage." In essence, Teagasc were asking the Union to forget about the commitments that had been given, the identification and availability of a vacant promotional post and accept an objective assessment of the claimant's post. To propose such an assessment, three years down the road, when the Director of Administration and the Head of Personnel are intimately aware of the level of duties undertaken by the claimant is unacceptable.
5. Management must upgrade the claimant in line with their commitments to him and the Union and utilising the vacant promotional post they themselves identified for this purpose. The absence of the staff member on long term study leave has saved the organisation over £100,000 in salary costs. Therefore, a recommendation from the Court in favour of the claimant would be totally self-financing. In 1995, there was a similar case of three other Teagasc staff who had been in acting positions for three years but who had not been paid an acting allowance. In this case, the Labour Court (in LCR14959) recommended that the staff concerned should be paid an acting allowance for the three year period up to the date of their permanent appointment, the 1st of July, 1994 and from the date of the Labour Court recommendation, the 10th of November, 1995, should be placed on the appropriate incremental point of the relevant scales that they would now be on had they been promoted on the original date of appointment. The Court justified its decision on the basis of the unreasonably long period that the three claimants had been performing acting duties. The claimant in this case will have been performing acting duties for an even longer period.
6. The Union claims the following in respect of the worker:-
(i) that he be paid the appropriate acting allowance for the period the 7th of October, 1996 to the 29th of October, 1998, the date of the confirmation by the Departments of the Staff Establishment Numbers and, therefore, the existence of the vacant promotional post;
(ii) the upgrading of the claimant to Grade V on a substantive basis with effect from the 1st of November, 1998, and
(iii) that the claimant's starting pay on promotion should be recalculated with effect from the 1st of January, 1999 in line with Labour Court recommendation no. LCR14959 in respect of three other Teagasc staff, and
(iv) a statement from the Court that the claimant had no alternative but to pursue this matter through the industrial relations machinery.
COMPANY'S ARGUMENTS:
4. 1. In July, 1997 sanction was received from the Department of Agriculture and Food to operate a delegated sanction which allowed the filling of vacancies within the clerical/administration establishment, provided they were in accordance with the recommendations of the CMOD report. When, in September, 1997, the worker raised the issue of payment of the acting allowance and the more substantive issue of his grading i.e. his advancement to Grade V on a permanent basis, Teagasc considered his request and formed the view it could only be accommodated in the event of:
(1) the worker who was on leave of absence resigning, thereby creating a vacancy or
(2) suppressing an equivalent post elsewhere in the clerical/administrative stream of the organisation to allow the creation of an additional Grade V post.
2. In discussions between Teagasc and the Union in July and September, 1998 the Authority informed the Union that Teagasc could only take a final position on the case when final agreement was received from the Department of Agriculture and Food on numbers within grades in Teagasc. The Authority undertook to inform IMPACT when a response was received from the Department. On the 7th of April the Union claimed Teagasc had reneged on an agreement on the identification of a Grade V post for the worker. Teagasc responded that there was no said agreement and that the question of how the specific grading issue may be addressed was not as straightforward as the Union suggested. The CMOD report, under whose terms Teagasc is required to operate, restricts Teagasc's ability to deal with individual cases in isolation and that to progress the matter further is would be necessary to conduct an objective assessment of the grading of the post in question. The Union was asked if it were prepared to proceed on this basis which, in the view of Teagasc, offered the best means by which the matter might be resolved. However, it then referred the matter to the Court under Section 20(1) of the Industrial Relations Act, 1969.
3. Teagasc is bound by the terms of sanctions from the Department of Agriculture and Food. In the case of clerical/administration staff the sanction states Teagasc may fill vacancies at the existing grade provided that this is supported by the recommendations of the CMOD review of March, 1996. Teagasc could not unilaterally select a post for upgrading outside the scope of the CMOD report without creating considerable discontent and creating the potential for sizeable regrading claims. The worker has been compensated by way of an acting allowance for extra duties carried by him for the periods of absence. There are no grounds at present for anything other than this. The issue can only be dealt with on a long term basis by an objective assessment of the post in question, subject to the consent of the two Departments.
RECOMMENDATION:
Having considered the submissions of the parties in this case it seems clear to the Court that the issue now in dispute could have been resolved amicably between the parties at a much earlier stage. The Court considers it regrettable that the various solutions which were put forward were not implemented by senior management and that the claimant was left with no option but to process the matter through the procedures of the Court.
The Court considers it particularly regrettable that the Director of Administration did not attend the Court's investigation. While the Court was given to understand that this person's absence was due to another engagement, given the history of this dispute and the central role which this member of management played in dealing with the claimant's grievance, the Court considers that his attendance at the hearing might have been considered a priority.
The Court notes that in December, 1998 a compromise position was discussed between the claimant and the Head of Personnel which provided for an acting allowance to be paid from the 1st of July, 1997 and the upgrading of the claimant to Grade V with effect from the 1st of January, 1999. The Court accepts that this was not put forward by way of a formal offer.
Nonetheless, it represented a fair and reasonable compromise and the Court recommends that it be now implemented with retrospective effect to the 1st of July, 1997 and the 1st of January, 1999, respectively.
Signed on behalf of the Labour Court
Kevin Duffy
21st June, 1999______________________
T.O'D./D.T.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.