FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WESTERN DEVELOPMENT COMMISSION (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's recommendation IR17112/03/TB.
BACKGROUND:
2. The appeal concerns a worker who commenced employment in her role of Fund Development Manager to the Western Development Commission (WDC) (a non- commercial Semi State Company) initially as a Temporary Professional Civil Servant in the Department of the Taoiseach pending the statutory establishment of the WDC. Taking account of the post's specialist expertise and prior experience requirements, a pay rate approximate to the 4th point of the Assistant Principal (AP) Higher Scale was approved. The claimant was appointed to this salary in 1997 and remained on it until September, 2001. The Union claimed that the worker should be given incremental credit for the years 1998, 1999 and 2000. The Union also sought 7 days holiday per year for each of the three years. The Employer rejected the claim. The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 14th April, 2004 the Rights Commissioner issued his recommendation as follows:
"Having carefully considered the submissions of both parties I do not recommend in favour of the Union position"
On the 27th April,2004 the Union appealed the recommendation to the Labour Court. The Court heard the appeal in Galway on the 16th February, 2005. Subsequent to the hearing the Company submitted supplementary information which was considered by the Court.
UNION'S ARGUMENTS:
3. 1. The single figure appeared on her contract of three years duration. The claimant understood that the fixed point in her contract and its duration was only a holding measure but she was aware that the entire scale was approved by the Department of Finance and the worker understood that the WDC would regularise this within one year with the passing of the Western Development Commission Act.
3. The Union was assured by the former CEO that no one would lose out as a result of delays.
4. The PCW (1994-1997) Agreement eliminated the discrimination for pay purposes of Temporary Contract Staff in the Civil Service and Semi State companies. This was further rolled into the Local Authorities and Health Boards in 2000. Prior to this Civil Service Circular 1301 allowed progression up five further points of the scale for Temporary Staff.
5. If the claimant left WDC and started employment in any other Semi State or Local Authority Health Board or Vocational Education Committee as an AP she would get incremental credit for relevant service for the period 1997 to 2002.
6. In relation to leave, the claimant was assured by her former CEO that her leave would be regularised in line with her marker grade. Annual Leave is always identical between Civil Service grades and non-commercial State Agenciesfor groups with similar or linked pay scales. The claimant is analogous to AP (Higher) Scale with 29 days annual leave.
EMPLOYER'S ARGUMENTS:
4. 1. The claimant accepted and signed a contract on the 18th August, 1997 which clearly stated a single point salary of £32,000 (€40,631.62) applied to the post and an annual leave allowance of 22 working days. The contract was for a three year period or until such a date in which the WDC forms as a statutory body transferring then to the WDC. It is not unusual for temporary /contract staff in the civil and public service to be placed on a single point salary. General pay awards applied.
2. The claimant was assimilated onto the 4th point of the scale on 1st September, 2001 going onto the 5th point of the scale fourteen days later on the 14th September, 2001 as the anniversary of her appointment. Had she started in 1997 on her current scale with annual increments, it would have placed her on the 5th point of that scale, on the 14th September, 2001. The 5th point of the higher scale was the point that she went onto on the 14th September, 2001. Since 14th September, 2002 she is on the 6th point of her scale and will proceed to her first LSI in September, 2005.
3. Had the AP scale for the claimant's job been in place in September, 1997, she would have been placed on the first point of this scale. The claimant's salary was revised on a personal basis in 1998. The absence of increments on her agreed fixed salary and the subsequent increased revised salary (during the period September, 1997 - September, 2001) has not disadvantaged the claimant on the point of the AP Higher Scale that she is currently on.
4. Salary scales proposed for the WDC, as the new State Body were rejected by staff. The issue was the subject of a Labour Court investigation and recommendation (LCR16831 issued in June, 2001 refers). Workers were assimilated into the new pay structure in September, 2001. The Court did not recommend any change in the grading of the claimant's post from that originally proposed by Management.
5. The Employer has applied the terms of the claimant's contracts (1997 and 2001) in a consistent manner. It has implemented the re-grading in a manner consistent with normal practice in the public service and has assimilated her onto the new scale and applied the additional leave allowance consistent with that scale in a similar manner.
DECISION:
Having considered the oral and written submissions and supplementary information in this complex case, the Court believes that the most appropriate solution is a practical one based on the unique and once-off nature of the case.
The Court recommends that the claimant be placed on LSI 1 of the A.P. (Higher) Scale with effect from 1st April,2005, at the top point of the AP (Higher) Scale from 1st April, 2002 with consequential adjustments arising.
Signed on behalf of the Labour Court
Raymond McGee
8th April, 2005______________________
TOD/BRDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.