FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation No: r-076237-ir-09-MH
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner's Recommendation No: r-076237-ir-09-MH. The issue concerns a claim by the worker that management failed to implement an agreement concluded in 2006 relating to the regularisation of long term acting up on the basis that he was not placed on the correct point of the payscale having acted up to a Grade VII position over a number of years.
Management's position is that it correctly applied the terms of the 2006 Agreement and that the worker was placed on the correct point of the payscale and also continued to receive incremental credit in his substantive post as well as receiving an acting up allowance. Management further contend that the claim is at variance with the cost increasing provisions of the Public Service Agreement 2010-2014.
The dispute was referred to a Rights Commissioner for investigation. His findings and recommendation issued on the 3rd June, 2010 and found that management had "properly applied the rules and agreements covering the particulars of the instant case." The Rights Commissioner did not find in favour of the worker's claim.
On the 8th July 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 22nd June, 2011.
WORKER'S ARGUMENTS:
3 1 Management has incorrectly applied the terms of the 2006 Agreement on the regularisation of long term acting up. It placed the worker on the incorrect point of the payscale which resulted in a delay in receiving Long Service Increments. The worker has subsequently incurred significant financial losses as a result.
2 Previous employees who had been acting up to higher grades were awarded incremental credit for experience in the higher grade.It is unacceptable that the claimant in this case be treated less favourably than comparable employees in simliar situations.
MANAGEMENT'S ARGUMENTS:
4 1 Management has correctly applied the terms of the 2006 Agreement. While acting up to the Grade VII position the worker was paid an acting up allowance and receved incremental credit in her substantive post.
2 The costs of the claim are unsustainable and at variance with the provisions of the Public Service Agreement 2010-2014.
DECISION:
The matter before the Court is an appeal by an employee of a Rights Commissioner’s Recommendation, which found that the HSE West had correctly applied the rules and agreements for incremental credit and accordingly rejected his claim.
The appellant submitted to the Court that in applying the terms of an agreement on the regularisation of long term acting up agreed between HSE West and IMPACT, in 2006, and backdated to June 2005 management had incorrectly assimilated him onto Grade VII (the acting up grade). He contended that he should have been placed at first Long Service Increment (LSI) on Grade VII from June 2005 and the second LSI from June 2006, as distinct from management’s application, which placed him at the maximum of Grade VII scale from June 2005, first LSI from June 2008. The appellant availed of early retirement in March 2010 and consequently did not reach the second LSI.
The appellant submitted to the Court that in the first instance in failing to classified him as “temporary”, and secondly in failing to recognise long service increments as the maximum of the scale in accordance with a 1996 Department of Health Circular management had deprived him of his rights to the incremental credit from the dates claimed.
Management of HSE West denied that it had incorrectly applied the rules and stated that application of incremental credit under the terms of the 2006 agreement was determined by Department Circular 10/71 and not by the 1996 Department Circular referred to by the appellant. Management stated that the appellant had continued to receive incremental credit on his substantive grade at all times while he was acting up and was also in receipt of an acting up allowance. In any event it held that the claim was cost increasing and therefore was precluded by the terms of paragraph 1.27 of the Public Service Agreement 2010 – 2014.
Having considered the submissions of both parties the Court is not satisfied that the terms of the 1996 Department circular referred to above had any application in this case as its terms were specific in time and referred only to those employees in existence at the time.
The Court is of the view that the terms of the Circular 10/71 was the appropriate guideline for the assimilation of employees in accordance with the terms of the 2006 agreement.
The Court has considered whether or not this claim is maintainable having regard to the terms of Clause 1.27 of the Public Service Agreement 2010-2014 which precludes trade unions from making or processing cost-increasing claims during the currency of the Agreement. The claim before the Court involves theprocessingof a claim, therefore the Court is precluded from processing it.
For all of these reasons the Court does not uphold the appeal and accordingly, the Rights Commissioner’s Recommendation stands.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd July 2011______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.