FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - TWO WORKERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal Of Rights Commissioner Recommendations r-113167-ir-11 & r-113176-ir-11.
BACKGROUND:
2. This dispute concerns the Workers' claim that they were undertaking the work of Instructors but were only paid as Multi-Task Attendants. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 3rd February, 2012 the Rights Commissioner issued the following Recommendation:-
- "I recommend that in full and final settlement of this dispute, the Claimants be regularised as Instructors with effect from the date of this recommendation."
On the 12th March, 2012 the Employer appealed the Rights Commissioner's 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 22nd May, 2012.
3. 1.The Workers have the relevant qualifications and have been carrying out the duties of an Instructor for some time.
2.The Public Sector Agreement preserves the status quo in respect of pay and conditions.
3.The Workers are simply seeking the established rate for the Inspector role which they are carrying out.
EMPLOYER'S ARGUMENTS:
4. 1.The Workers have not been appointed to the position of Instructor.
2.There is no requirement on the Workers to carry out the duties of an Instructor.
3.Concession of this cost-increasing claim is precluded by Public Service Agreement.
DECISION:
This is an appeal by the HSE West of a Rights Commissioner’s Recommendation which found in favour of the Claimants’ should be regularised as Instructors with effect from the date of the Recommendation (3rdFebruary 2012).
The Union on behalf of the two Claimants submitted the claim for payment as the appropriate rate stating that they were undertaking the work of Instructor but were paid as Multi Task Attendants.
The HSE West rejected the claim on the basis that while both Claimants are carrying out the role of Instructors there is no requirement on them to do so and they have not been appointed to positions of Instructor. Furthermore, it held that the claim was prohibited by the Moratorium on Recruitment and Promotions in the Public Sector and by Clause 1.27 of the Public Service Agreement 2010-2014 which prohibits claims of a cost-increasing nature.
Having considered the submission of both sides the Court notes that the work being carried out by the Claimants is as an Instructor as opposed to a Multi Task Attendant. The Claimants had been employed as Multi Task Attendants until the closure of St. Mary’s Hospital, they have since acquired the relevant Instructor qualifications and are working in the community as Instructors, but being paid at a lower grade. Management acknowledges this and it sought to have the appropriate grade applied to themin December 2010.
The Court is of the view that it is unreasonable to expect the Claimants to undertake work of an Instructor while not being paid a rate or allowance commensurate with that work.
In the circumstances of this case, the Court is satisfied that the Claimants should be paid an appropriate acting up allowance with effect from 3rdFebruary 2012, i.e. the date of the Rights Commissioner’s Recommendation. The Court accordingly varies the Recommendation of the Rights Commissioner. The appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th July, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.