FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL UNIVERSITY OF IRELAND GALWAY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner's Recommendation r-141158-ir-13
BACKGROUND:
2. The Worker commenced employment with NUI Galway in 2003 and continued in various roles on a regular basis until March 2006. She was offered and accepted further part-time research work with effect from September 2009 until August 2012 on a fixed term contract basis. In addition to this part time role she was offered and accepted another part time role as a teaching assistant with effect from September 2011 until March 2012 both roles to run concurrently. In August 2012, while she was still undertaking her doctoral research programme, she was appointed as a University Teacher for a three year period up until July 2015. The Union argues that she should be placed on the higher pre-January 2011 salary pay scale rate while Management disagree and have placed her on the lower new entrant post-January, 2011 pay scale.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 21st August, 2014, the Rights Commissioner issued his Recommendation as follows:
"The fact of the matter is that the claimant was a Public Servant prior to the introduction of the legislation and the question at issue must therefore relate to the employment status of the claimant for there can be no doubt that given her employment history and if she had held a permanent contract as a Senior Researcher and was promoted to the position of University teacher she would have been appointed at the pre-January 2011 rate. In these circumstances I recommend that the appropriate adjustments be made to the claimant's rate of pay to reflect an entitlement to the pre-January 2011 rate for the position of University Teacher."
On the 9th September, 2014 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 18th November, 2014.
UNION'S ARGUMENTS:
3. 1. The Claimant was employed as a Public Servant in various roles on a temporary basis beginning in 2003. Since 2009 her employment became continuous with the College, prior to the Government's introduction of 10% reduction in pay scale for new entrants in 2011.
2. The Claimant was performing work analogous to that of University Teacher in the School of Chemistrybefore January 2011.
EMPLOYER'S ARGUMENTS:
4. 1. The Department of Education and Skills has stated clearly that the grade of University Teacher is an entry grade. Therefore the Claimant was correctly considered a new entrant in an entry grade.
2. The University was correct in applying the post 2011 salary scale in line with Financial Emergency measures in the Public's Interest Act 2009 and in accordance with the document received from the Department of Finance and the HEA.
DECISION:
This is an appeal by the University against a Rights Commissioner’s Recommendation which found in favour of the Claimant’s claim. The Union on behalf of the Claimant claimed that she was incorrectly placed on the post 2011 pay scale for new entrants to the Public Service when she commenced a new contract on 1stAugust 2012. She sought to be placed on the pre January 2011 pay scale and claimed retrospection back to 1stAugust 2012.
University Management stated that in setting her pay for the new contract commencing on 1stAugust 2012 it acted in accordance with the Department of Finance document dated 21stDecember 2010 entitled“Guidance on application of 10% reduction in pay rates to entry grades to the public service”. In particular it referenced paragraph 9 which refers to“New Entrants to the Public Service”and outlines the approach to take when deciding whether or not a person is a new entrant to the public service. This paragraph provides that persons recruited to the same or an analogous grade/role as their previous public service employment after 31stDecember 2010, whether that employment was permanent or temporary, will not be regarded as new entrants. Management stated that as the Claimant had not been serving in an analogous grade prior to the contract she was appointed to on 1stAugust 2012, therefore she was regarded as a new entrant for the purposes of the guidelines on the application of the 10% pay reduction.
The Union disputed this contention and stated that the Claimant had served in an analogous grade/role. Her employment with the University was as follows:-
- •1st September 2009 – 31stAugust 2012.Part-time Post-Doctoral Researcher.
•15thSeptember 2011 - 25th March 2012, Part-time Teaching Assistant in the School of Chemistry.
•1stAugust 2012 - 31st July 2015, Part-time University Teacher in the School of Chemistry.
Having considered the comprehensive submissions of both parties, while the Court accepts that the role of University Teacher is not the same as the role of Teaching Assistant, it is satisfied that it can be viewed as an analogous role in public service employment, as both involved teaching Chemistry to both under-graduate students and post-graduate students for the periods covered by the contracts.
Therefore, in the circumstances of this case the Court is satisfied that the Claimant met the criteria for exemption from the 10% pay reduction and accordingly upholds the Rights Commissioner’s Recommendation and rejects the appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th December, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.