FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms O'Donnell |
1. Appeal of Rights Commissioner (now known as Adjudication Officer) Recommendation No: r-150641-ir-14/MMG.
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner (now known as Adjudication Officer) Recommendation No: r-150641-ir-14/MMG. The issue concerns the employment status of the worker and his classification as a new entrant into the Public Health Service. The Union's position is that the worker was improperly classified as a new entrant and placed at a significantly lower salary than expected on his appointment. Management contends that it correctly classified the worker as a new entrant and that he was paid at the appropriate level.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on 26th November 2015 and did not find in favour of the worker's claim. On the 5th January 2016, the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 5th February 2016. The following is the Court's Decision.
Decision:
This dispute came before the Court by way of an appeal against the recommendation of a Rights Commissioner / Adjudication Officer (wrongly described by the Rights Commissioner as a ‘Determination’).
In the course of the appeal it became clear that the net issue in dispute concerns the appropriateness of the classification of new entrants adopted by the HSE and its parent Government Department for the purpose of applying a reduced salary scale to Hospital Consultants. In effect, the position taken by the Union is that the definition of new entrant used in the circular issued by the Department of Health differed materially from that used by the Department of Finance in a 2010 Circular and applied to all other public servants. The Union also contend that the treatment of the Claimant as a new entrant, and the salary reduction applied to him, constituted a contravention of the Public Services Agreement.
It is clear that the effect of the disputed classification is not confined to one individual. Potently at least, it impacts on others whose circumstances are similar and whose pay was similarly reduced. In these circumstances the Court is satisfied that any decision that it would make in this case would, actually or potently, affect the pay of a group of workers.
Section 13(2) of the Industrial Relations Act 1969 precludes a Rights Commissioner /Adjudication Officer from investigating a trade dispute that is connected with the rates of pay of body of workers. For the reasons referred to above the Court is satisfied that the subject matter of this dispute comes within that prohibition.
It follows that this dispute should not have been referred to a Rights Commissioner / Adjudication Officer and should have been processed under other provisions of the Industrial Relations Acts 1946-2015. Since the dispute was not properly before the Rights Commissioner / Adjudication Officer it is not properly before the Court. Accordingly the Court must decline to deal with this appeal.
For the avoidance of doubt the Court wishes to make it clear that since the Rights Commissioner / Adjudication Officer’s investigation was undertaken, and his recommendation was made, outside of his statutory jurisdiction, there is no impediment to the matter being referred back to the Court in accordance with the appropriate procedure.
Signed on behalf of the Labour Court
Kevin Duffy
18th April, 2016______________________
CO'RChairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.