FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : CORK INSTITUTE OF TECHNOLOGY - AND - A WORKER (REPRESENTED B Y TEACHERS UNION OF IRELAND) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Salary progression.
BACKGROUND:
2. The dispute concerns a claim by the Teachers Union of Ireland on behalf of the Claimant that her date of progression to the Grade of Lecturer Career Grade should take into account her part-time service. In this particular case it relates to the interpretation of the 1998 PCW Agreement for staff in the Institute of Technology sector and subsequent conversions to Assistant Lecturer post.
The Claimant is an employee and member of the Academic Staff of Cork Institute of Technology since 1991. From 1991 to 1999 she was employed as a part-time Researcher with a range of duties and responsibilities including research and lecturing. With effect from September 1999 she was appointed as a permanent whole-time Assistant Lecturer being appointed on the 6th point of the scale in accordance with the provisions for incremental credit at that time. On the 1st October 2001, she reached the maximum point of the Assistant Lecturer scale and one year later on the 1st October 2002, she met what the Union believes to have been all the criteria necessary to progress to the grade of Lecturer. The Union believes that she is now entitled to progress to the Lecturer grade with effect from 2002. The Institute has refused this progression and has stated that she can only progress with the effect from the 1st October 2004, i.e. two years later. The issue of dispute therefore concerns the date of progression from the grade of Assistant Lecturer to the grade of Lecturer for the Claimant.
The dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission on 14th March, 2005. As agreement was not reached, the dispute was referred to the Labour Court on the 4th April, 2006 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 15th November, 2006.
UNION'S ARGUMENTS:
3.1 The Union argues that the work carried out by the Claimant between 1990 and 1999 while technically not titled as Assistant Lecturer work was in fact equivalent work. Her work between 1995 and 1999 being all recognised third level work was equivalent to that of the then grades of either Lecturer I or Lecturer II both of which are regarded as being above that of Assistant Lecturer and both of which were requested to undertake exclusively higher level work. Consequently her work must be considered at the very least equivalent to that of Assistant Lecturer and therefore reckonable for the purposes of progression.
2. The Union contends that each of the years served by the Claimant between 1991 and 1999 would count as one year for the purposes of recognition either for increments or progression. Even if it were deemed necessary to apply a much more restrictive interpretation and to require that the Claimant would aggregate the number of hours required to make up the deficit of one year and eleven months the total aggregate comes to 2417.25 which is greatly in excess of the aggregate number of hours required. The maximum aggregate hours necessary would be 630 (the annual maximum) x 1.91 (1 year 11 months) = 1,207.5. The Claimant worked 2417.25 hours which would appear to be approximately double the hours required.
3. As the Institute altered its position following the issue of a letter from the Department of Education and Science in May 2005 and was then prepared to accept the year 1998-1999 for the purpose of progression there remained only 11 months outstanding. The maximum necessary hours required on this basis would then be 630 (the annual maximum) x 0.91 (11 months) = 577.5. Discounting the hours worked in 1998 - 1999 this leaves 1798.65 hours taught to cover the 577.5 hours required.
INSTITUTE'S ARGUMENTS:
4.1There are three key elements in relation to progression for the Claimant (who does not hold a PHD):-
- One year at the maximum of the scale - there is no issue in relation to this.
- Satisfactory performance, etc. - there is no issue in relation to this.
- Five years continuous service in the grade but the grade and the provision for staff to progress only commenced on the date of implementation of the Agreement (PCW), 1st September, 1998. Therefore, only service in the grade from that date onward can be counted.
2. The Institutehas treated this case as exceptional and has agreed to backdate the Claimant's progression by one year to 2003.
3. The Institute has granted substantive retrospective payment in recognition of the Claimant's long service and commitment and on the basis that the Grade of Assistant Lcturer only came into being on 1st September, 1998.
4. The Institute offer was made on the basis of being personal and in full and final settlement of the claim
5. The Institute considers its offer to be fair and reasonable.
RECOMMENDATION:
While a number of important issues have been raised by the parties in this case the Court is satisfied that the issue in dispute essentially turns on the correct interpretation of the PCW Agreement of 1998. This Agreement provides in clear terms that progression from the grade of Assistant Lecturer to the grade of Lecturer is conditional upon a teacher having completed five years in the grade.
Read in context, the reference to "the grade" must be a reference to the grade of Assistant Lecturer. In the Court's view, in order to support the interpretation contended for by the Union, it would be necessary for the Court to re-write the Agreement so as to provide that the essential qualification would relate to the grade of Assistance Lecturer,or equivalent.
The Court must take the Agreement as it was drafted by the parties thereto. As drafted it refers to the grade of Assistant Lecturer and not to service in any other grade or position. Since the grade of Assistant Lecturer was only reintroduced in 1998, service before that date cannot be taken into account.
In these circumstances the Court does not recommend concession of the Union's claim. The Court does recommend that the Employer's final offer be accepted on the terms proposed.
Signed on behalf of the Labour Court
Kevin Duffy
24th_November, 2006______________________
JBChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.