FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ST PATRICKS COLLEGE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - IFUT DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Upgrading
BACKGROUND:
2. The union is seeking to have the worker in this case regraded to the status of Assistant Lecturer. This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 22nd August, 2012, in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 4th December, 2012.
UNION’S ARGUMENTS:
3. 1. The College has employed the Worker concerned as a Tutor since 1992. The Worker argues that while on a bespoke tutor scale he has been consistently assigned duties appropriate to the grade of Assistant Lecturer. He is seeking the alignment of his pay scale with the work he performs.
2. Initially employed on a succession of fixed term contracts of employment in 2005, he became entitled to a Contract of Indefinite Duration in respect of the Contract Tutor position he held.
3. He is primarily involved in coordination and developing coursework, teaching and setting exams on first and third year language courses. Research underpins his teaching work.
EMPLOYER'S ARGUMENTS:
4. 1. The terms of the Government imposed Moratorium on Recruitment and Promotion in the Public Sector, prevent the College from engaging in any way with this claim.
2.The claim is cost increasing and as such, is precluded under clause 1.27 of the Public Service Agreement.
RECOMMENDATION:
The Court has carefully considered the extensive submissions of both parties to this dispute.
The Court notes that both the Management and Union agree that the Applicant, though classified as a Tutor, has been consistently assigned and has undertaken the full range of duties appropriate to the Assistant Lecturer Grade.
Nevertheless the College argues Section 1.27 of the Public Service Agreement prevents it from applying that rate of pay to the Applicant. It further argues that the relevant Government Departments have refused the College sanction to so do.
The Union argues that as the worker concerned is required to carry out the work appropriate to the grade of Assistant Lecturer, he is entitled to be paid the established rate of pay for that grade. It further notes that he is currently paid on a bespoke personal scale that is loosely linked to the Assistant Lecturer Scale. Finally it argues that a claim seeking application of the agreed rate of pay for work done cannot amount to a cost increasing claim within the meaning of the Public Service Agreement 2010 – 2014.
In the Court’s view the difference between the form and substance of the Applicant’s contract of employment is at issue here. The Worker is employed and paid as a Tutor but is required to carry out the work of an Assistant Lecturer. In these circumstances the Court takes the view that the College cannot rely on the formal terms of the contract of employment to defeat the workers claim. Instead the Court finds that the Applicant is entitled to payment on the basis of the work he is required to perform. Noting that the employer does not dispute the workers assertion that the work he performs equates to that of an Assistant Lecturer the Court takes the view that the commitment in the Public Service Agreement to the effect that no cost increasing claims will be served or progressed during the currency of the Agreement cannot mean that a worker such as this will be paid a rate of pay below the agreed and established rate for the work he performs. In this case the agreed rate for the work being assigned to and performed by the Applicant is the Assistant Lecturer rate of pay.
Accordingly the Court recommends that the College align the pay and work of the worker concerned with the established rate for the job and place him on the appropriate point of the Assistant Lecturer Scale with immediate effect.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
19th December, 2012Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.