ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000263
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 | CA-00000390-001 | 22/10/2015 |
Date of Adjudication Hearing: 07/01/2016
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Complainant’s Submission and Presentation:
The complainant has been employed by the respondent local authority since October 2000. She has been continuously Acting at Assistant Engineer Cognate Grade since January 2004 - a total of 12 years - and is seeking to have the position at Assistant Engineer Pay Scale regularised i.e. appointed on a permanent basis to that grade. The economic collapse and the subsequent embargo on employment in the public sector has meant that she has been maintained as a permanent graduate, and acting at Assistant Engineer/Cognate grade. Prior to the embargo graduates who completed 2 years’ service could expect to progress to the Assistant Engineer/Cognate scale which is the first permanent grade within the pay structure for engineers/cognates. In two recent cases in Kildare County Council and Louth County Council, claims were upheld for Graduate Engineers to be regraded as Assistant Engineers as they had been carrying out work at that level for some time. The difference in this case is that the claimant has been paid at the appropriate rate – albeit on a temporary basis – the principle that she is de-facto filling a post at Assistant Engineer/Cognate level, for which there is an ongoing requirement, remains the same. In the event that the complainant had to be interviewed for a position at this level, she would be at disadvantage in relation to other candidates who were Engineers as she would be ineligible to compete for Engineering posts whereas engineers would be eligible to compete for Assistant Engineer/Cognate posts. |
Respondent’s Submission and Presentation:
The respondent contends that this is a cost-increasing claim and is precluded under the provisions of the Public Service Agreements. No member of staff is entitled to an automatic right to be regraded. It is the policy of the sector that all posts are filled through a competitive selection process involving application, assessment and interview. This is an approach that has been protected by the union side. There are many incidences of long-term acting arrangements across the sector. As part of the Workforce Planning exercise a number of local authorities have proposed to increase their current complement of Assistant Engineering posts and reduce the complement of Graduate Engineers. The Department of Environment, Community and Local Government has advised that favourable consideration will be given to all such requests. Formal confirmation of the Department’s approval is awaited in the case of the respondent local authority.
Appendix 6 of the Haddington Road Agreement dealt with the regularisation of long-term actors and committed to bringing the issue to a conclusion as part of the workforce planning process. This exercise is ongoing. Discussions took place with the unions at a national level and following an LRC process in relation to acting arrangements in South Dublin County Council, it was agreed between the parties that confined competitions would be held for posts sanctioned under Workforce Planning which were being filled by long-term actors. The acceptance of the application of this agreement was the subject of a Labour Court hearing between Dublin City Council and IMPACT where the substance of the agreement was upheld.
If Management was to concede to the claim for regrading without competition it would create significant issues for the filling of posts in respect of long-term acting arrangements.
The Labour Court has issued several recommendations in similar cases and concluded that such claims are precluded under the provisions of the current public service agreement (LCR 21063, LCR 20132, LCR 20052)
Conclusions:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.
There is one issue for me to consider;
- That the claimant be appointed permanently at Assistant Engineer/Cognate level
I have considered the submissions of both parties. I note that in this case the claimant is being paid the appropriate rate for the duties she is carrying out and that the issue is solely whether or not she should be appointed on a permanent basis without further interview in advance of the implementation of the national agreement on long-term acting up. I am guided in particular by the Labour Court decision in LCR 21001 (Dublin City Council and IMPACT) which dealt with the implementation of the agreement in relation to regularisation of long-term actors. No provision was made in the agreement for appointment without competition. The Labour Court found;
’that the parties entered into an agreement at national level regarding the manner in which the Local Authority sector would deal with the issue of long term vacancies that had been filled in an acting capacity because of the effect of the financial cutbacks and the employment embargo. That agreement made no provision for compensation for long term actors that were not successful in competitions for vacant posts identified and filled in the relevant local authority. As Management is complying fully with the terms of that agreement the Court does not recommend concession of the Union's claim’.
The respondent is in the process of implementing the national agreement in full in this instance. Accordingly, I do not see merit in the claim for appointment without competition and it is rejected by me. However, in accordance with the spirit of the agreement, and in light of the length of time during which she has been acting, it is reasonable to expect that, in deciding the distribution of the posts to be converted from Graduate Engineer/Cognate to Assistant Engineer/Cognate, the respondent should ensure that a permanent post at Assistant Engineer/Cognate level is established in a functional area for which the complainant is suited and can compete.
Recommendation:
The claim to have the claimant appointed at Assistant Engineer/Cognate level is rejected.
In deciding the distribution of the posts to be converted from Graduate Engineer/Cognate to Assistant Engineer/Cognate, the Respondent should ensure that a permanent post at Assistant Engineer/Cognate level is established in a functional area for which the complainant is suited and can compete.
Dated: 23 March 2016