FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner r-097141-ir-10/TB.
BACKGROUND:
2. The Claimant in the first instance was a Social Researcher in the Research, Registration and Inspection Services in the HSE South. She was seeking to have her post upgraded from Social Work Team Leader to that of Principal Social Worker. She was seeking the upgrade to be backdated to 2007 at which time she raised the matter with her Line Manager. The HSE South neither accepted nor rejected the claim for upgrading but rather stated that simply it was unable to pay for the claim if successful. The Claimant retired from the HSE on 29th February 2012.
As the dispute could not be resolved at local level, the matter was referred to a Rights Commissioner for investigation and recommendation. On the 9th June, 2011, the Rights Commissioner issued his Recommendation as follows:-
"Based on the submissions of the parties it seems clear to me that the employer committed to upgrading the claimant's position and now finds that because of the economic situation is unable to do so. The claim predates by a long way the Public Service Agreement that the employer seeks to rely on and it should have been dealt with, one way or another, long ago. In all the circumstances of the case I am recommending that the claimant's position be upgraded as outlined in the letter to her of 11th March 2008."
On the 18th July 2011 the Employer appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 17th April 2012.
UNION'S ARGUMENTS:
3. 1. Two of the Claimant's former colleagues who do similar work have already been upgraded.
2. As the Claimant has already retired from the Service the claim has implications for her level of pension, but has no ongoing wage implications for the HSE.
COMPANY'S ARGUMENTS:
4. 1. The responsibilities attached to this post will in all likelihood transfer to HIQA. It will be taking over responsibility for the registration and inspection functions currently carried out by the HSE and the tasks that the Claimant performed in her role will be no longer come within the remit of the HSE.
2. The HSE South is not contesting the validity of the claim but asserts that there is no money available to meet the cost of any upgrade recommended by the Court
3. This is a cost-increasing claim and is prohibited by the terms of the Croke Park Agreement.
DECISION:
The Court has carefully considered the submissions of both parties to this dispute.
The Claimant is seeking to have her post upgraded to the level of Principal Social Worker. The justification for the claim is that a number of other Employees engaged in similar work in the same geographical area were remunerated at that rate. Equally, a number of further HSE Employees in other locations were paid at the same rate as the Claimant
Accordingly, the Court finds that there is no national agreed rate for the job in issue. It would be inappropriate for the Court to create such a national rate by way of a series of individual claims that are based on inappropriate, inadequate or confined Comparators within the HSE. The matter should be addressed by way of a national review of the rate of pay for the grade.
The Court accordingly decides that the HSE, following a proper review of the work involved, establish a national grade rate for this post. The current claim should then be addressed in that context.
This process should be completed within twelve months of the date of this Recommendation.
The Rights Commissioner’s Recommendation is accordingly set aside.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
6th July, 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.