FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - 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. An appeal of a Rights Commissioner's Recommendation no: r-150645-ir-14.
BACKGROUND:
2. The Claimant is employed on a part-time basis by Dublin City Council. He applied for a vacancy in the Waterworks Department but his application was not accepted because the Council said he was a Cleaner.
- The Union said the Claimant is in fact a General Operative (GO) and is being paid at a GO rate on a pro-rata basis as he works part-time and as such has been less favourably treated on the basis of his part-time work.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 22nd April 2015 the Rights Commissioner issued the following Recommendation:-
- I have considered the submissions of both parties. It would appear that the invitation of expressions of interest from the GO grade for a transfer was not sufficiently clear in the notice and the Claimant in good faith applied. I am satisfied that there is no barrier to cleaners applying for vacancies that are open to competition in the Council. This was stated to the Claimant. I therefore do not uphold the appeal.
A Labour Court hearing took place on the 21st July 2015.
UNION’S ARGUMENTS:
3. 1. The Claimant has a Pay Number which is that of a GO and is distinct from the Pay Number given to all other grades of staff further reinforcing the position that he is a serving GO.
2. A benchmarking exercise in 2003 classed Cleaners and GOs as one and the same.
3. The Claimant is a cleaner who cleans offices. The only difference between him and a GO who cleans the streets is the location they clean and nothing more.
EMPLOYER’S ARGUMENTS:
4. 1. The Claimant’s contract of employment requires that he works a maximum of 25 hours per week and like all part-time Office Cleaners he is required to be available at all times to work between 6:00am and 9:00pm Monday to Saturday.
2. In March 2014 expressions of interest were invited from GOs to be reassigned to GO positions in the Water Services & Drainage Division. The Claimant applied but was turned down as he was not employed as a GO.
3. The position was not a promotion and there was no monetary gain for those selected. It was an opportunity for a GO to experience work in a different area of the Council.
DECISION:
The Court has given careful consideration to the extensive written and oral submissions of both parties to this dispute. The Court finds that while the rates of pay and terms and conditions of employment of Cleaners and General Operatives are similar the grades are separate and there is no evidence of the existence of a collective agreement that provides for transferability between them. In this case the Council was inviting expressions of interest for transfer within the grade of General Operative. Cleaners were neither eligible to apply nor liable to be transferred to or within the General Operative Grades. Accordingly, in the absence of a collective agreement that provides for transferability between the two grades, the Court does not uphold the Union’s claim and decides accordingly.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
5th October, 2015Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.