FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of A Rights Commissioner R-091371-IR-10/RG
BACKGROUND:
2. The issue before the Court concerns an Appeal of a Rights Commissioner's Recommendation. The Worker concerned has been employed as a General Operative with the Council since 1977. He has not been paid a series of pay increases due to him under National Pay Agreements because of his refusal to accept the Paypath system. The Worker contends that it is not stated in any National Agreement that Paypath is the compulsory method of payment to be adopted by the Employer. He argues that he is covered by a 1997 Agreement in which it states that existing staff are encouraged to join the Paypath system on a voluntary basis. The Employer's position is that the movement of all staff to the Paypath system is a requirement under the modernisation agenda of National Agreements.
The dispute was referred to a Rights Commissioner for investigation. Her Recommendation issued on the 28th October, 2010 as follows:
"The issue has been decided by the Labour Court in Appeal Decision No. AD0949 between Donegal County Council and A Worker and was issued on 27th May, 2009. The Court upheld the Recommendation of the Rights Commissioner to the effect that payment of wages through paypath was an integral part of National Pay Agreements.
I recommend that when the Claimant conforms to the requirement to have his wages paid through paypath then he should be paid all his entitlements."
On the 5th November, 2010 the Worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 26th January, 2011.
UNION'S ARGUMENTS:
3. 1 There was no Union mandate for Paypath. It is not mentioned in any National Agreement. The Employer did not properly engage with the Worker to notify him of the change to Paypath and the consequences of not doing do.
2 In a 1997 Agreement it states that the Employer withdraws it's requirement that existing employees accept Paypath. New employees would be placed on Paypath and existing employees would be encouraged to join the system on a voluntary basis.
COMPANY'S ARGUMENTS:
4. 1 A move to Paypath for all staff is a requirement under the modernisation agenda of Sustaining Progress. The Worker was not paid the increases as staff who had not moved to Paypath were excluded from sanction given for payment of these increases by the Department of the Environment, Heritage and Local Government.
2 Staff were notified of the change to Paypath by depot visits and several letters. The Worker concerned was written to on three occasions. The transition of all staff to Paypath was dealt with through Partnership and was raised on several occasions at meetings between June 2004 and December, 2007.
DECISION:
The worker appealed the Rights Commissioner’s Recommendation, which found against his claim concerning non-payment of pay increases due to him under Towards 2016 as he refused to move to payment through thePaypathsystem.
At the hearing, the Appellant indicated to the Court that he was prepared to sign up toPaypathat this stage, but sought retrospection of the increases back to their respective due dates, i.e. 2.5% from 1st March 2008 and 2.5% from 1st September 2008.
Under an agreement reached in May 2005 at the City Council Corporate Partnership Forum with the various Unions represented in the City Council, it was agreed that in accordance with the Modernisation Agreement under Sustaining Progress that those workers who signed up to payment of wages by thePaypathsystem would receive increases in pay in accordance with the terms of the agreement. Those who did not sign up would not receive the increases due. Various deadlines were agreed for the different categories of staff. Due to previous commitments given to General Operatives in 1997 concerning method of payment, a deadline date of 31st December 2007 was imposed for those workers. Accordingly, those workers who refused to sign up did not receive increases due under Towards 2016, including the Appellant.
The Appellant submitted that there was no provision in the terms of Towards 2016 for the non-payment of the increases due, where a worker does not sign up for thePaypathsystem. In any event he submitted that he was covered by the 1997 Agreement which allowed for payment by cheque.
Having considered the submissions made by both sides the Court is satisfied that the City Council wrote to the Appellant on three occasions before the deadline date of 31st December 2007 and before the relevant increases were due, to inform him of the necessity to comply with the provisions of the May 2005 Agreement. He was also informed that he would be paid the increases due from the date he signed up to thePaypathsystem, post the deadline date, but without retrospection.
In all the circumstances of this case, the Court finds that the City Council complied with procedures prescribed under the May 2005 Agreement and accordingly recommends that if the Appellant decides to sign up for thePaypathsystem, he should be paid the increases due from the date of signing, i.e. without retrospection.
Therefore the Court concurs with the Rights Commissioner and the appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th February, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.