FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DONEGAL COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation R-052181-Ir-07/JT
BACKGROUND:
2. The worker has been employed by the Council since June, 1977, and she is currently graded as Assistant Staff Officer. Her case is that the Council has refused to pay her a series of pay increases (5 increases totalling 12.5%) due under various National Agreements because of her refusal to co-operate with the introduction of Paypath. The Council's case is that Paypath was an integral part of modernisation and change under the National Agreements.
The worker referred her case to a Rights Commissioner and his recommendation was follows:
" I have considered the detailed documentation submitted by both parties and the arguments made to the hearing. I have viewed this matter with my detailed knowledge of the various National Agreements and in particular Agenda for Change and Delivering a Better Public Service. The respondents are well within their right to withhold the increases that the claimant believes is due to her. The bedrock of all these agreements are based on the fact of pay awards and improvement in conditions are made for more efficient delivery of the management of public services and their delivery to the public. It is an integral part of all these agreements and the social partners have devised ways of managing that change. I am satisfied that Paypath clearly comes into this. I, therefore, recommend that when the claimant conforms with the requirement of Paypath and any other changes agreed with the respondent and the claimants Union, then she should be paid her entitlements the same as everybody else".
The worker appealed the recommendation to the Labour Court on the 6th June, 2008, in accordance with Section 13(9) of the Industrial relations Act, 1969. A Labour Court hearing took place on the 20th May, 2009, in Donegal, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. All National Agreements that have been implemented have provided for local level discussions/negotiations. The introduction of Paypath was agreed in a document dated 14th September, 1995, between the Council and IMPACT"subject to staff agreeing". The Council has submitted no evidence that staff agreed to the terms as expressed in the relevant document.
2. A Staff Circular dated 12th January, 2001, supports the fact that Paypath only applies to new employees. A number of other independent sources confirm same.
3. The National Agreements under which increases were withheld from the worker made no specific mention of the issue of Paypath. The introduction of Paypath was and is discretionary for management.
4. Increases which were withheld from the worker were applied in some cases to employees who had opted not to join Paypath.
COUNCIL'S ARGUMENTS:
4. 1. Paypath was an integral part of the modernisation and change agenda brought forward under Better Local Government and various National Agreements, including Sustaining Progress and Towards 2016. Sustaining Progress establishes a clear link between performance, including co-operation with flexibility and ongoing change, and payment of increases. Paypath is an agreed part of this modernisation.
2. A number of Circular Letters (details supplied to the Court) issued by the Department of the Environment, Heritage and Local Government sanctioned payment of various phases of National Agreements. These payments were conditional, inter alia, on satisfactory implementation of the agenda for modernisation.
DECISION:
The appeal of the Rights Commissioner’s Recommendation before the Court made by an employee concerns the non-payment of increases due under the terms of “Sustaining Progress” and “Towards 2016”. The Rights Commissioner found that the Council was well within its rights to withhold payment of the increases due to her non co-operation with “Paypath”. In her appeal, the Appellant submitted that the Rights Commissioner had failed to take cognisance of a local agreement of 14th September, 1995, between the Council and IMPACT which expressly provided that Paypath only applied to “new employees”.
Having considered the oral and written submissions of both parties, and having examined the terms of the 1995 local agreement and the terms of Sustaining Progress and Towards 2016, the Court is satisfied that the 1995 agreement has been superseded by the Modernisation Agenda which formed an integral part of the subsequent National Agreements referred to. Both Sustaining Progress and Towards 2016 stipulated that payment of the increases due is conditional upon employees’ compliance with the required co-operation with flexibility, modernisation and change.
The Council submitted that while not specifically referred to in the National Agreements, the requirement for employees to co-operate with Paypath is an integral part of the Modernisation Agenda and payment of increases due is subject to verification of the satisfactory achievement of the provisions. Letters to this effect were sent to all employees on 14th September 2006 and 23rd February 2007 outlining the consequences of non-compliance with Paypath. Circular Letters 06/06 and 02/07 from the Secretary General of the Department of the Environment, Heritage and Local Government specified the conditions for payment of increases and clearly referred to the conditions surrounding non-co-operation with Paypath.
The Court is satisfied that the withholding of increases due under Sustaining Progress and Towards 2016 to the Appellant was in accordance with the provisions which formed an integral part of the agreements and was warranted in this case. Furthermore, the Court is not satisfied that her reasons for non-co-operation with Paypath come within the terms of Circular Letter 02/07, which provides for consideration of individual exceptional circumstances warranting the non-use of Paypath.
Therefore, the Court rejects the Appellant’s appeal and upholds the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th May, 2009______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.