FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE SOUTH - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Breach of Agreement.
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Union on behalf of its member in relation to the Employer's alleged breach of a grading agreement. The dispute refers specifically to the Worker's claim for an acting-up allowance as well as recognition and protection of seniority in his current Grade VI position. The Union, on behalf of its member contends that the Employer is acting in breach of the terms of an agreement reached between the parties following a Conciliation Conference held under the auspices of the Labour Relations Commission by appointing a worker of a higher grade than the Claimant into the same area hence dissolving the Claimant's seniority status. The Union as a result is seeking that the Claimant be re-graded to an Acting Grade VII and that his seniority be restored. The Employer rejects the Union's claim arguing that the Labour Relations Commission agreement has been upheld and applied consistently. The Employer further asserts that the Union's claim is precluded under the terms of the Public Service Agreement (2010-2014).
The dispute could not be resolved at local level and was the subject of a further 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 27th October, 2011, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 27th September, 2012.
UNION'S ARGUMENTS:
3. 1. The Claimant has lost his right to seniority and tenure as second in line following the appointment of a Grade VII within his section.
2. The Claimant has been denied the right to act-up and as a result has suffered a financial loss following the loss of the accompanying acting-up allowance.
3. The Employer is acting in breach of the terms of theLabour Relations Commissionagreement.
EMPLOYER'S ARGUMENTS:
4. 1. The Claimant has previously accepted and received a once-off sum of compensation in full and final settlement of this dispute, as set out in theLabour Relations Commissionagreement.
2. The Employer maintains that the Union's claim is cost-increasing and as a result is precluded under Clause 1.27 of the Public Service Agreement.
3. The Employer is not in a position to concede the Union's claim.
RECOMMENDATION:
The matter before the Court concerns the Union’s claim on behalf of a Worker who submitted that Management was in breach of an agreement reached under the auspices of the Labour Relations Commission in 2004. The agreement provided,inter alia,that“in the event of same grade recruitment”as the Claimant, the Claimant would“enjoy rights of seniority in for example access to acting up duties”. The Claimant works in procurement as Supplies Officer Grade A on Grade VI.
The Union submitted that Management had breached that agreement when in December 2008 it appointed a colleague into a Grade VII position and thereby eroded the Claimant’s seniority. On behalf of the Claimant the Union sought an upholding of the LRC Agreement, Grade VII acting allowance and upgrading to Grade VII from December 2008.
Management stated that the LRC Agreement has been implemented in full, the Claimant was being remunerated correctly for the duties he carries out and he continues to maintain his seniority within the Procurement Department. It outlined the circumstances whereby the Grade VII post was filled stating that the post held by the Claimant’s colleague at the time was upgraded and the incumbent was accordingly upgraded. Furthermore, Management submitted that the claim was debarred by the terms of the Public Service Agreement which precludes Trade Unions and employees from making or processing cost-increasing claims during the currency of the Agreement.
Having considered the submissions made and having examined the 2004 LRC Agreement, the Court notes that the filling of the Grade VII post in December 2008 resulted from a decision to upgrade the post. Prior to upgrading the post the incumbent at the time was placed on acting-up duties in the Grade VII role. As the incumbent had been a Grade VI, the same grade as the Claimant, the Court has formed the view that the allocation of acting-up duties to the incumbent was in breach of the 2004 LRC Agreement. However, as the claim before the Court was made on 5thJuly 2010 and the Public Service Agreement was ratified on 15thJune 2010, the Court is precluded from dealing with the claim at this time.
Signed on behalf of the Labour Court
Caroline Jenkinson
31st October 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.