FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Various Issues Relating To Grading
BACKGROUND:
2. The issue before the Court concerns an employee of the Health Service Executive (HSE) who is currently in an acting up position. The employee concerned commenced employment with the HSE in 2003 at Clerical Officer Grade 3. In January, 2006 the employee commenced an acting up position at Clerical Officer Grade 4. He remains in this position and receives an allowance for it. It is the Union's argument that the employee should now be employed as a full time and fully recognised Clerical Officer Grade 4. The HSE argues that appointments to permanent positions in the Health Service Executive are governed by the Public Service Management (Recruitment & Appointments) Act, 2004 and it lacks the requisite statutory authority to make an appointment in the manner requested by the Union.
On the 30th July, 2009 the Union referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 16th October, 2009. The Union agreed to be bound by the Court's Recommendation.
UNION'S ARGUMENTS:
3. 1 The worker has continuously and effectively discharged all the duties pertaining to the Grade 4 post. No performance issues have arisen. He provides essential payroll services, administration services and is responsible for all leave records and compliance with the European Working Time Directive.
2 The worker has exhausted attempts to have the matter addressed locally and has been excluded from competing for the post. He was barred from some open competitions because he was not Grade 4 and could not use his four years experience to progress his career nor apply for a transfer on the Grade 4 transfer list.
EMPLOYER'S ARGUMENTS:
4. 1 The HSE is not empowered to make appointments by designation by virtue of the provisions of the Public Service Management (Recruitment & Appointments) act, 2004. Therefore, it cannot make a permanent appointment in the manner requested.
2 There are many people occupying acting positions within the HSE and some are in excess of the worker concerned. Were this claim acceded to this would result in allowing staff in acting-up positions to circumvent the established procedures for recruitment and promotion. It would also have significant financial implications.
RECOMMENDATION:
The Court accepts that the position of the Claimant in this case is anomalous in that he has been acting in a position for which there appears to be a permanent requirement for an inordinate time. However, the Court is not satisfied that the position as it relates to this individual is capable of resolution in isolation from that of others who may be in a similar position.
The Court recommends that the parties enter negotiations with a view to concluding a collective agreement to deal with the position of those in long-term acting positions. In those negotiations the parties should seek to regularise the Claimant's position within the employment.
Signed on behalf of the Labour Court
Kevin Duffy
5th November, 2009______________________
DNChairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.