FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CEREBRAL PALSY IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR69/00/CW.
BACKGROUND:
2. In December, 1998, an agreement was reached with Cerebral Palsy Ireland (CPI) under appendix 1, clause 2(iii) of the PCW, for technicians working in the Seating Department in Sandymount Clinic. The agreement provided for a new structure of Trainee - Basic - Senior - Principal. This local agreement was similar to the national pay and, the Union claims, grade structure of Clinical Engineering Technicians (CET) which comprised Basic - Senior - Principal - Chief (where staff complement was 4 or more). CPI maintains that the similarity only extended to pay, not grade. It was agreed to implement the 3 lower grades, and to hold off on the Principal post until the staff complement reached 5. The Union's claim is that the worker concerned should have filled the post of Principal by designation, just as the 3 lower grades were filled by designation from among the existing staff, in line with the national agreement. CPI's view is that the post should be filled by internal/external competition, and that this was agreed in December, 1998. CPI did advertise the post internally. The worker applied for the post, but later withdrew his application.
The case was referred to a Rights Commissioner and his recommendation is as follows:
"I recommend that the Union and the worker accept that the post in question is filled by open competition".
(The worker was named in the above recommendation.)
The Union appealed the recommendation to the Labour Court on the 7th of July, 2000, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 6th of September, 2000.
UNION'S ARGUMENTS:
3. 1. It was the Union's clear understanding at the time of the agreement in December, 1998, that there would be no question of competition for a Principal post, as there had been none in the national context of CETs. If the post in question had been filled at the same time as others in CPI, it would have been filled by designation.
2. The worker was for 3 years (until the new structure was put in place) the most senior member of the technical staff. There is complete agreement between the worker's colleagues that he should fill the Principal post by designation. He possesses the required qualifications and references for the post.
3. As a publically funded employer, CPI has a responsibility to apply national agreements locally. It is unacceptable that new management should try to rewrite what was already agreed.
CPI'S ARGUMENTS:
4. 1. Although CPI is not party to agreements reached at national level throughout the Health Service, most staff in CPI have a link, for pay purposes only, to the equivalent grade in the Health Services. To concede a link in respect of conditions of employment to which CPI is not a party would have a serious knock-on effect throughout the organisation.
2. The PCW agreement reached locally in CPI specifically states that new posts will be filled by internal/external competition. CPI cannot limit itself to closed competitions as it would be contrary to good employment practice, and to a merit based system of recruitment and selection.
DECISION:
The Court, in considering the written and oral submissions made by the parties, is presented with a conflict of evidence in relation to the background to this case.
Having considered all aspects of the case, the Court recommends that the claimant confirms his application for the advertised post and, his being the only application, that the CPI management should make a decision on the appointment.
Signed on behalf of the Labour Court
Finbarr Flood
19th September, 2000______________________
CON/CCChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.