FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer's Recommendation No: r-159445-ir-15JOC.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and recommendation. On 8 April 2016 the Adjudication Officer issued the following findings and recommendation:
Findings:
Both parties made written and verbal submissions at the hearing. I find the respondent has not demonstrated that any distinguishable difference actually exists in the role of TQS and Per Way Inspector. It also appears that some ambiguity exists around what was actually agreed at the meeting in October 2013 as to who would actually be in receipt of BIK as it appears the respondent attached terms and conditions post acceptance of an agreement between the Trade Union and themselves.
Recommendation:
Based on the submissions at the hearing I recommend in favour of the claimants position.
The Employer appealed the Adjudication Officer's Recommendation to the Labour Court on 13 April 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 13 July 2016 and 25 November 2016.
UNION’S ARGUMENTS:
3. 1. The letter confirming the complainant's appointment confirms the position of TQS and A Class (B65) Per Way Inspector are the same grade and therefore attracts the benefit in kind for the van.
2. The complainant was informed by his Manager at the meeting where he was informed of the position being given to him that BIK applied with the post.
3. The Union is requesting that the complainant is afforded the entitlements for the position he holds as TQS A Class Inspector and he is treated the same as that of his colleagues of the same post.
EMPLOYER’S ARGUMENTS:
4. 1. No commitment was ever given to the complainant that he would be in a position to avail of BIK, except if he was successful for one of the 15 Night Duty Inspectors. As he was unsuccessful for these positions there is no such entitlement.
2. The complainant in the position he holds i.e. Track Quality Specialist is not entitled to avail of BIK.
3. The claim that was made by the Trade Unions was for 15 positions to have access to BIK. It was this claim that was conceded, so therefore only the successful applicants for those positions can be afforded BIK.
DECISION:
The Court has given careful consideration to the extensive written and oral submissions of both parties to this dispute.
The Court finds that the Complainant was not one of the 15 red circled staff that retained an entitlement to BIK as A Class Permanent Way Inspectors. Indeed he was not appointed to that grade. Instead he was appointed a Track Quality Specialist. A distinct post which was linked for pay purposes to the grade of Permanent Way Inspector. That pay link did not carry with it an entitlement to the BIK arrangements claimed in this case. The severance of BIK link was made clear to the Trade Unions before the positions were advertised and filled. They did not raise an objection at the time and accordingly cannot now seek to retrospectively alter the terms on which the Claimant was appointed to the post.
The Court on these grounds decides that the Claim is not well founded. The appeal is allowed. The recommendation of the Rights Commissioner is set aside. The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
30 November 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.