FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST ANGELA'S COLLEGE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Recommendation R-081432-IR-09/SR
BACKGROUND:
2. The worker is Secretary to the President of St. Angela's College. She has traditionally had a pay relationship with her counterpart in St. Catherine's College, Dublin, but when this closed in August, 2007, the comparator became St. Patrick's College, Dublin, and Mary Immaculate College, Limerick. In 2006 the College engaged Mazars Consultancy to review the work and pay rates of some staff. One of the posts was that of the worker concerned and the report recommended that the post be upgraded to that of a Higher Executive Officers (HEO). The worker was upgraded to EO in 2007 as a result of her comparator in St. Catherine's College attaining the EO grade. The Union's claim is that the worker should be graded the same as her comparators who are paid as HEOs. The claim also makes reference to the Mazars Report. The College's case is that the worker's upgrade in 2007 was in full and final settlement of her claim and that she cannot now make a further claim.
The case was referred to a Rights Commissioner and his recommendation is as follows:
"I have carefully considered all the evidence and submissions made and I have concluded as follows.
I note that in their letter of 25th July 2007 (referred to by both parties), IMPACT states "I refer to your correspondence of 9th February re our member. I write to confirm that this upgrading of her post and conditions as set down in your correspondence is acceptable to IMPACT and constitutes full and final settlement of this claim".It is crystal clear thatwhat is been settled is the then current claim and nothing else. Certainly there is no suggestion or implication that it prohibits future claims unrelated to the matter being settled at the time - and to suggest otherwise does not 'stand up'. This submission by the employer is totally rejected and is entirely without merit.
The claimant is entitled to be treated no less favourably than her colleagues in relation to the Mazars report.
There is considerable merit in the complaint/claim and it is fully upheld. I recommend that the claimant be upgraded in accordance with the Mazars report on the same basis as her colleagues who were upgraded on the basis of that report.
I so recommend."
The College appealed the recommendation to the Labour Court on the 22nd February, 2010, in accordance with Section 13(9) of the Industrial Relation Act, 1969. A Labour Court hearing took place on the 4th November, 2010, in Sligo.
UNION'S ARGUMENTS:
3. 1. The worker is entitled to have her post upgraded to HEO as per the recommendations contained in the Mazars Report, the same grounds upon which a number of other staff had their post upgraded.
2. There is overwhelming evidence that the worker is working at a higher level than for which she is being reimbursed.
COLLEGE'S ARGUMENTS:
4. 1. The worker was upgraded 3 years ago and the upgrading was backdated to September, 2004. The Union accepted that this was in full and final settlement of the claim. There has been no significant increase in her duties since thenand the Union cannot now make a further claim.
2. It is not appropriate to use St. Patrick's College and Mary Immaculate College as comparators for the claim as they have two and three times the level of students respectively.
DECISION:
The Court is satisfied that the material facts of this case are as follows:-1. The accepted reference point for determining the appropriate pay for the Claimant's post is that of the salary payable to the secretary to the President of St. Catherine's College in Dublin.
2. In 2007 the Claimant's salary was adjusted to that of an executive officer in the Civil Service following a similar adjustment to the salary of the comparator post. The agreement between the College and the Claimant's Trade Union provided that the adjustment was in full and final settlement of her regrading claim
- 3. At the time this agreement was concluded the Claimant was aware of the recommendations of what is referred to as the Mazars report.
4. The upgrading recommended by Mazars covered 45 posts. None of these recommendations have been fully implemented in respect to any of the posts to which it relates.
5. The essence of the present claim is that the recommendation of the Mazars report should be fully applied to the Claimant.
Notwithstanding this conclusion there is another aspect of the case to which the Court should refer. The Union and the Employer in this case are covered by the Public Service Agreement 2010-2014. That Agreement, at clause 1.27, precludes the making or processing of cost-increasing claims during the currency of the Agreement. The Only exception to that provision is in respect to minor claims. The Union submitted that this claim comes within that exemption as it related to one individual.
In the Court's view a claim cannot be regarded as minor in nature if its concessions would logically lead to consequential claims by a significant number of other workers. The underlying rationale upon which the present claim is based is that the recommendation of the Mazars report should be implemented. If that claim was conceded it would inevitably lead to claims from all other grades encompassed by those recommendations, which could not logically or in equity be resisted.
In these circumstances the present claim could not be regarded as a minor claim within the meaning of the Public Service Agreement 2010-2014. On that basis alone the Court could not support concession of this claim.
It is noted, however, that the Rights Commissioner issued his recommendation in January 2010, before the Public Service Agreement came into being. No arguments were addressed on whether this should be regarded as a relevant consideration in considering the applicability of the Agreement at this stage. Accordingly, the Court reserves its position on that point.
In all the circumstances, the Court is satisfied that the employer's appeal should be allowed and the Rights Commissioner's recommendation should be set aside.
Signed on behalf of the Labour Court
Kevin Duffy
12th November, 2010______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.