FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (BF) (REPRESENTED BY CALLAN TANSEY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Upgrade and retrospection.
BACKGROUND:
2. The worker commenced employment with the HSE in 1971. She has been employed as an Assistant Staff Officer (Grade 4) since April, 2004, and has been in receipt of a Dual Responsibility Allowance since 29th November, 2004. On 31st May, 2005, an agreement was reached between the parties in respect of regularising long-term acting arrangements for clerical administrative staff and this became known as the McDonald Agreement. The Agreement was expanded so that Clerical/Administrative Staff in the North West (including the worker concerned) who had been in receipt of an Acting Allowance, Additional Responsibility Allowance or a Dual Responsibility Allowance before 1st January, 2004, and which had continued without interruption to 1st January, 2007, would be regularised in the upgraded post without competition. As a result many employees sought to have the start date of allowances backdated to bring them into line with the criteria to obtain the automatic upgrade. An Appeals Committee was set up to deal with these cases. The worker's case is that she carried out duties above her grade from April, 2001, to 29th November, 2004, but did not receive the appropriate allowance. On 24th May, 2007, the worker sought to have her allowance backdated to July, 2003. She was informed that such approval must come from the Assistant National Director of PCCC and that no such approval was received in her case. In June, 2008, the McDonald Appeals Committee heard her case but confirmed that she did not meet the criteria to benefit from the Agreement.
The worker referred her case to the Labour Court on the Labour Court on the 9th February, 2010, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 25th November, 2010, in Donegal town.
UNION'S ARGUMENTS:
3. 1. It is clear that the worker qualifies for the Dual Responsibility Allowance. As well as carrying out her own work she carried out a large number of additional duties necessitated by understaffing in the Department.
2. The result of not getting the allowance backdated was that she could not get the automatic upgrade that she was also entitled to.
HSE'S ARGUMENTS:
4. 1. The claim is cost-increasing and, as such, is precluded by the current National Agreement, the Public Service Agreement 2010-2014.
2. The worker did not meet the criteria as contained in Circular 10/2007 for approval of the Dual Responsibility Allowance. This was further confirmed when the Appeals Committee heard her case.
RECOMMENDATION:
The claim before the Court concerns the claim by the Claimant for retrospective payment of a Dual Responsibility Allowance from April, 2001, until 28th November, 2004, and for an upgrade to Grade V pursuant to “the McDonald Agreement” of 2005.
“The McDonald Agreement” was an agreement reached nationally between the HSE and IMPACT in respect of regularising long-term acting arrangements for clerical/administrative grades. As subsequently revised and agreed between the parties, it applied to those in clerical/administrative grades who had been in receipt of either an Acting Allowance, an Additional Responsibility Allowance or a Dual Responsibility Allowance before 1st January, 2004, where such an allowance continued to be paid without interruption to 1st January, 2007, and where the HSE identified an ongoing need for such positions. Such persons were accordingly regularised in the upgraded post without competition.
The Claimant was paid a Dual Responsibility Allowance from 29th November, 2004, and she variously sought to have this allowance backdated to October, 2002, and ultimately back to April, 2001. She is currently an Assistant Staff Officer at Grade IV.
Approval for such retrospection was subject to the approval of the Assistant National Director of PCCC. Approval was denied as the duties she undertook did not fall under the criteria for payment of the allowance and accordingly she did not meet the criteria to benefit from “the McDonald Agreement”. The Claimant referred her case to the McDonald Appeals Committee. The Committee decided that she did not meet the criteria to benefit from “the McDonald Agreement”.
Having examined the submissions made by both sides the Court can find no reason to overturn the decisions of the Assistant National Director of PCCC or the McDonald Appeals Committee. The Court notes that there was no contemporaneous claim made for the allowance during the period in question and the Court has not been provided with any substantive arguments to warrant concession of the retrospective payments. As the Claimant did not qualify for the allowance during the relevant period for entitlement to an upgrade under “the McDonald Agreement”, the Court does not recommend concession of the claim.
In any event the Court has also considered whether or not this claim is maintainable having regard to the terms of the Public Service Agreement 2010-2014. Clause 1.27 of that Agreement precludes trade unions from making or processing cost-increasing claims during the currency of the Agreement. It is accepted by both sides that the claim before the Court is cost-increasing.
For all of the above reasons the Court does not recommend concession of the Claimant's claim.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th December, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.