FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Of Recommendation Of A Rights Commissioner
BACKGROUND:
2. The issue before the Court concerns two Workers who have been acting up in a higher grade and receiving higher duty payments.It is the Union's claim that the first Worker (Mr N), has been performing the role of Facilitator on a continuous basis over a number of years and under the terms of the Union/Company Agreement of 2001, he should be appointed to the higher position. The Company argue that Mr N was not paid at the superior duty rate on a whole-time basis and therefore the Agreement does not cover him. The Union are seeking that the second Worker (Mr T) be allowed to continue to act up and cover colleagues in the same fashion as he has since 2001.
The matter was referred to the Rights Commissioner for investigation and Recommendation. On the 29th February, 2008 the Rights Commissioner issued his recommendation as follows:
"In making my recommendation in these cases I am mindful of the fact that a number of the claimants have received the payments continuously since the late 1990's. In this regard it is not legitimate for the respondent to argue that these claimants have received the payment as a result of their good fortune. It was management's right to remove the payments at the appropriate time viz. when the business exigency and the requirement for cover ceased. Its failure to do so is a tacit acceptance and as a result of the passage of time management has forfeit its right to unilaterally remove the payment.
Accordingly I recommend that (3 workers named)(despite the fact that they do not currently hold the responsibility) be appointed to the Facilitator grade on a red circle basis. Management in these cases will retain the right to appoint them to the next available and appropriate Facilitator position.
I do not recommend concession of the claims in respect of (the workers concerned with this appeal plus two other workers named) who act up in accordance with normal industrial practice. Finally I recommend the appointment of a third party independent assessor to evaluate the team leader role and determine the appropriate rate of pay for that role"
On the 9th of April, 2008 the Union appealed the Rights Commissioner's Recommendation to the Labour Courtin accordance with Section 13(9) of the Industrial Relations Act, 1969. ALabour Court hearing took place on the 9th July, 2008.
UNION'S ARGUMENTS:
3. 1 Mr N has received a higher duty payment on a weekly basis for every week since 1999 in relation to his position. The Union contend that Mr N is at least as much if not more justified to be appointed to the role of Facilitator as those that were successful in the Rights Commissioner's Recommendation. He had greater responsibilities over a longer period of time performing in the role.
2 The Rights Commissioner's Recommendation could adversely affect Mr T. In the Recommendation three of Mr T's colleagues are afforded the Facilitator rate of pay. The Company may use his colleagues to cover work that Mr T has traditionally done and he would lose higher duty payments.
COMPANY'S ARGUMENTS:
4. 1 Mr N routinely works weekends supervising staff in the absence of the regular facilitator. On occasion he has worked in this role during the week. He has not therefore been paid at the higher rate of pay on a whole-time basis during the period of the claim.
2 Mr T has recieved higher duty pay but only on intermittent occasions when he provided relief for appointed Facilitators.
DECISION:
Having considered the submissions of the parties and with specific reference to the decision of the Rights Commissioner, the Court decides to allow the appeal in regard to Mr N and to disallow the appeal on behalf of Mr T.
Signed on behalf of the Labour Court
Raymond McGee
28th July, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.