ADJUDICATION OFFICER RECOMMENDATION
Adjudication Decision Reference: ADJ-00000372 and ADJ-00000331
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-00000326-001 | 20/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 | CA-00000327-001 | 20/10/2015 |
Date of Adjudication Hearing: 19/01/2016
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
We are employed by a County Council. We have been employed as Graduate Engineers from 31 January 2008 and 18/02/2008 respectively in the National Roads Office of the County Council. We have been attending to, expected and have been expected to attend to work/duties/responsibilities at, as a minimum, at the level of Assistant Engineering level. Following the failure of protracted attempts to resolve with our employer we are seeking to have our positions confirmed and acknowledged at Assistant Engineer level at a permanent capacity and at the appropriate point on the Assistant Engineer pay scale. We have been on the top of the limited Graduate pay scale without any pay increment since January 2008. We graduated in 2007 and have been in full time engineering employment since then. We became entitled to contract of indefinite duration in early 2012. |
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Submissions at hearing on behalf of the Complainants
The Graduate Engineer Grade was always considered to be an entry level position. It was not considered to be a permanent position and yet both these Complainants have been maintained at a graduate level both in terms of lack of permanence in their position and in terms of pay scale, for a period of 8 years.
The custom and practice was that the newly recruited graduate engineers would be promoted to Assistant Engineer after one to two years in service. Eight years at the same entry level is unprecedented. Graduate engineers are referred to as “temporary” in Departmental Circular EL 1/81.
As the Public Service Agreement 2010-14 precluded trade unions from making or processing cost increasing claims during the currency of the agreement, the Respondent has refused to consider the claims to regularise the position of the Complainants and instead states that the posts have to be filled by competition, which will not take place until after the Public Service Agreement no longer applies.
In June 2015, both Complainants were appointed as Temporary Assistant Engineers by the Respondent on a fixed term contract for five years. This resulted in the Complainants being placed on pay scales that were point 3 on the Assistant Engineer Pay Scale and point 4 of the Assistant Engineer Pay scale respectively. Therefore any argument that a recommendation in favour of the Complainants would be a cost increasing measure, is rejected. They are already being paid on the Assistant Engineer scale, albeit as part of a fixed term contract, rather than a permanent position.
Evidence was tendered that the work being done by the Complainants is equivalent to the work done at an Assistant Engineer level. This is supported by the Senior Engineer in the Council.
Respondent’s Submission and Presentation:
Submissions at hearing on behalf of the Respondents
Public Service Agreement 2010-14 precluded trade unions from making or processing cost increasing claims during the currency of the agreement.
Since the embargo was introduced, any promotion within County Councils, have been done by way of competition, which is the way that the Respondent intends to deal with the Complainants. There is no entitlement to a regrade.
The Respondent accepts that over eight years of employment the work done by the Complainants is like that of Assistant Engineers, but this does not automatically give rise to a regrade of position. The Respondent has a right and indeed a statutory obligation to manage the workforce within the existing ranks and available positions within the County Councils. Acceding to regrading claims, as they arise, cannot determine how the Respondent manages its workforce. There are other complainants, such a long term acting up employees. If regrade claims were acceded to, without competition, then the long terms acting up complainants would be leap frogged without justification.
Decision:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under that Act.
Legislation involved
Industrial Relations Act 1969
Decision:
I have some sympathy for the Respondent in terms of the competing interests that they have to manage. However, the central defence raised to this claim is that such a regrade would have cost increasing effect, which breaches the Public Service Agreement 2010-14, which I do not accept has been demonstrated on the evidence.
Since June 2015 both complainants have been placed at a pay scale of an Assistant Engineer, albeit on a temporary basis, on the basis of a fixed term for five years. Therefore there is no doubt that their pay is now at the Assistant Engineer scale. The decision to increase their pay to a higher scale has already happened. The only matter outstanding is whether they should be entitled to have their posts made permanent and whether these are any cost implications for this.
On inquiry the representative for the Respondent said that the cost implication would lie in the obligation to provide pension entitlements further down the line. However the pension entitlement is based on time served, not timed served in a permanent capacity. No evidence was provided by the Respondent that employees who were on temporary fixed term contracts, but who were also entitled to contracts of indefinite duration, are treated adversely from a pension calculation point of the view than other employees who are permanent. I would have thought that such an arrangement, were it to be the case, might be fragile, from a discrimination point of view.
I do not accept that this recommendation will have a knock on effect for either long terms acting up employees or other regrade claims.
The reason that the regrade is being recommended in this particular case is five fold:
I do not accept that the regrade has cost increasing implication for the Respondent for reasons already stated.
The Complainants were confined to a graduate level pay scale for a significant amount of time, 8 years.
Both Complainants are entitled to contracts of indefinite duration
Senior engineers in the county council agree that the work done and responsibilities of the Complainants are like that of Assistant grade Engineers
The flood gate argument that many regrade claims will now be brought does not have a sound basis, in circumstances where, there has already been a concession by the Respondent that they are being paid on an Assistant level pay, which is an important concession and is a central reason why this recommendation in this particular case, favours the Complainants. Relief is only being granted from the date that they became Assistant Engineers, albeit on a temporary basis i.e. from June 2015. A time from which the cost argument, ceased.
I find these complaints to be well founded and I recommend the following:
That each of the Complainants be regraded to Assistant Engineer on a permanent basis and placed on the Assistant Engineer Pay scale (on the points they are currently on) with effect from June 2015.
As compensation I recommend that the Respondent pay to each complainant the sum of €2000.00.
Dated: 26th May 2016