ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003155

Dispute for Resolution:

Date of Adjudication Hearing: 19th August 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 13^th May 2016, the complainant referred a dispute to the Workplace Relations Commission. The dispute was made pursuant to the Industrial Relations Acts. The complainant is a general operative and the respondent is an airline.

The dispute was scheduled for adjudication on the 19^th August 2016. The complainant was in attendance and was represented by SIPTU. Two representatives of the respondent attended the adjudication hearing.

In accordance with section 13 of the Industrial Relations Act, 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Complainant’s Submission and Presentation:

The complainant commenced working for the respondent in the year 2000 and was engaged as a general operative in the loading section. He has progressed in this role and is now a general operative grade C. In 2008, the union and the respondent reached a collective agreement, which allowed employees to “leave and return” to less favourable conditions of employment in return for a lump sum. The complainant did not avail of this proposal and maintained his grade C and legacy terms and conditions of employment.

This dispute relates to a vacancy advertised by the respondent for a role in a different department. The complainant submitted his application for the role. The respondent later modified the advertisement to state that the role was an ‘a’ grade. The complainant was successful at interview and the role was offered to him at the ‘a’ grade. The complainant declined the role, but expressed his dissatisfaction because there were other legacy grade ‘c’s in the department. The complainant submitted a formal grievance.

Another candidate was appointed to the ‘a’ grade role, and it transpires that a grade ‘c’ was later advertised and to be filled from within the department. The complainant refers to other instances where other staff members had been allowed to move position and retain their terms and conditions. The complainant asks that it be recommended that he transfer into the department in question and retain his legacy terms.

The complainant exhibits part of the collective agreement. It provides the categories covered by the agreement and this includes operatives. It clarifies that the agreement applies to all new contracts and internal promotions after the 1^st January 2009. The complainant provides a copy of the advertisement without a reference to any grade. He provides the formal grievance lodged on his behalf by email on the 14^th January 2016. On the 11^th April 2016, the complainant appealed against the first instance recommendation.

At the hearing, the complainant outlined that he had seen the advertisement posted on a notice board. The post was subsequently re-advertised with the references to the ‘a’ grade included. He was subsequently unable to go for the ‘c’ grade position in the maintenance department as this had been restricted in-house. He referred to a clerical staff member who had been able to retain her terms and conditions following a transfer. The complainant also referred to ongoing vacancies in the maintenance department, including at grade ‘c’. The complainant outlined that there would be no knock-on effect, for legacy reasons, if he were able to retain his conditions. The maintenance department had not been incorporated into the agreement as it was transferred in at a later date. The complainant outlined that his recollection was that the offer made to him was that of a team member grade ‘a’ and not a legacy grade ‘a’ post. There was a difference in the hourly and shift rates of pay and because no night rate was payable. He said that he would not have taken the legacy ‘a’ post. He outlined that this represented a move sideways for him and it was not a promotion. He stated that there were seven grade ‘a’ posts in the facility at this time and eight legacy ‘c’ posts. The only vacancy was a grade ‘c’ role.

Respondent’s Submission and Presentation:

In submissions, the respondent acknowledges that the complainant has been promoted during the course of his employment with the respondent and was appointed on a permanent basis to a grade ‘c’ role as loading supervisor. The respondent submits that one of the features of the 2008 agreement was that all future promotions in the departments within its scope would be under new team member terms. While this certainly applied to ground operations, the respondent states that it is arguable whether the maintenance department the complainant sought to join was covered by the agreement. The respondent submits that the post for which the complainant had applied was a new entrant post, i.e. a grade ‘a’ post. This was a permanent night role. The respondent outlines that at the interview it was explained to the complainant that this was an entry level role. After the interview, the complainant was placed on a panel and offered the role in March 2016 at grade ‘a’.

The respondent outlines that it was always clear that the role advertised was that of a grade ‘a’. It is submitted that this was referred to on three occasions in the advertisement. This was also referred to at the interview. The complainant had said that he should retain his legacy status on taking up the role. The respondent outlines that it was always clear that this was a new entrant role and it could not open the door to “piggyback” claims from other staff members. The respondent denies that it has subjected the complainant to unfair treatment.

At the hearing, the respondent submitted that it was not practical to red circle staff in promotional situations. It acknowledged that there were differences between grade ‘a’ and ‘c’ roles, with the former role being an entry role and the latter role being a highly skilled supervisor role. In respect of the clerical officer roles, it was submitted that they were now employed by a parent group and the staff member had been reassigned as part of this restructuring. This named colleague had accepted less favourable terms and conditions. It was submitted that the correct advertisement was posted online and that an incorrect version may have been fixed to the notice board. The respondent affirmed that it offered the complainant a legacy ‘a’ position at interview, as opposed to the new entrant ‘a’ role. The role did not represent a promotion. It was open to interpretation when the line maintenance function existed within the respondent at the time of the collective agreement and before a transfer of undertaking in 2010. The employees previously engaged by the transferor are covered by a separate agreement, which is similar to the collective agreement here.

Findings and reasoning:

The complainant is a longstanding employee of the respondent and is a supervisor in a particular operations section of the respondent. He has retained legacy terms and conditions. He wishes to transfer into a different department and retain his grade and legacy terms and conditions. The respondent denies the claim, referring to the collective agreement of 2008. It states that this provides that legacy staff who transfer or who are promoted do not retain their legacy conditions. It alludes to the danger of piggyback claims.

There are a number of complicating factors. One is what was stated on the advertisement. The complainant exhibited an advertisement that did not list a grade for the role he sought; the respondent exhibited an advertisement that refers to grade ‘a’ at three points. A second is the status of the maintenance department to which the complainant seeks to join; I understand that this transferred into the respondent after the collective agreement came into being. A third factor relates to the comparators raised by the complainant and whether or not they were able to retain their conditions and whether their situations are comparable. There was also an issue of whether the complainant had been offered a new entry or legacy ‘a’ grade; this is less important as the complainant said he would not have accepted either role.

Addressing these issues first, it is clear that an advertisement was placed on the noticeboard that did not refer to the position’s grade. A subsequent, online version of the advertisement included the reference to grade ‘a’. The first advertisement was clearly an error on the part of the respondent and one that the complainant became quickly aware of. I do not find that the incorrect initial version of the advertisement created any sort of legitimate expectation on the part of the complainant.

Looking at the industrial relations issues in the round, the complainant is a longstanding and senior member of staff in the operations division. He opted to retain legacy terms and conditions and did not avail of a “leave and return” package some years ago. He wishes to move within the organisation and understandably not lose his terms and conditions. He points to other legacy ‘c’ staff in the department he wishes to move to. A question mark seems to exist whether this department is captured by the agreement. There are benefits to staff being able to move within a large organisation such as the respondent, to promote their career and skills development and also to promote workplace harmony by prevent teams becoming staid. This is particularly the case because of the age profile of the staff, including the complainant.

Despite these comments, it is impossible for me to look beyond the terms of the collective agreement. It applies to all members of the union and all staff of the respondent operations departments. It provides that “for the purposes of clarity” the agreement applies to all contracts of employment agreed after the 1^st January 2009. It follows that this would apply to a new contract of employment agreed by and provided to the complainant. I cannot, therefore, recommend that the complainant be transferred to a legacy ‘c’ post in the department he seeks. While I cannot make the recommendation as suggested, I do recommend that the respondent and the union revisit the issue of staff mobility of legacy and new entrant grades as it appears that it is time to do so some eight years after the agreement.

Decision:

Section 13 of the Industrial Relations Act, 1969 requires that I make a decision in relation to the dispute.

For the reasons outlined in this report, I am unable to recommend that the complainant be transferred into a particular department and to retain his legacy grade ‘c’ terms and conditions.

I recommend that the respondent and the union examine the issue of staff mobility in both legacy and new entrant grades, to ensure that staff members are able to avail of opportunities within the company.

Dated:   18/11/2016