ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003213

Disputes for Resolution:

Date of Adjudication Hearing: 09/08/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the disputes to me by the Director General, I inquired into the disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the disputes.

Attendance at Hearing:

Background

There are two claimants in this case, both employed as ICT specialists by a national organisation which provides public advice and support. (A third claimant with an identical claim is the subject of a separate decision).

Claimant A (Grade IV) has been employed by the respondent since April 2008 and in 2013 sought a regrading of his post and following an agreed job evaluation exercise, it was accepted that the post should be Grade VI.

Claimant B (Grade IV) has been with the respondent since September 2007. In 2013 he too sought a regrading of his post. After a job evaluation exercise, it was accepted that the post is Grade V.

This resulted in a job evaluation exercise being undertaken by an independent consultant and on the basis of that exercise the consultant concluded in June 2014 that the role should be re-graded at the public service Grade VI and that he should be assimilated on to the third point of that grade.

The respondent is funded by the public service and it applied for sanction and funding to its ‘parent’ Department (hereafter the Department) to meet the conclusions of the job evaluation exercise.

However, the relevant department has declined to provide funds to do so, citing the public service embargo on all ‘cost increasing’ claims.

Complainant’s Submission and Presentation:

The claimants say that these are re-gradings and do not fall to be dealt with as ‘pay claims’. No pay claim as it would normally be understood was ever served by the claimant or his union.

In fact what happened was that on foot of the independent exercise the posts were identified as being, at that time, incorrectly graded.

The Claimants say that the Public Service Agreements and the moratorium on recruitment were never intended to target the replacement or retention of critical specialist staff.

In support of their case the claimants relied on two recent decisions of the Labour Court.

In the first of these; LCR 20616 a nurse sought upgrading to a higher grade and the Labour Court conceded the claim despite the submission of the employer in that case that it was covered by the moratorium on recruitment and promotions and would carry ‘national implications’.

The second case, LCR 20862, also involved the public service and incorrect grading. The claim was a straightforward one seeking upgrading from a Grade III to Grade IV, as the claimants carried out the exact same work as their Grade IV colleagues. Again the Labour Court found in favour of the claimants.

(These cases are considered below).

Respondent’s Submission and Presentation:

The respondent confirmed the factual background to the issue as outlined above.

Following the exercise in this (and the related claim) it entered into correspondence with the Department, and the Department of Public Expenditure and Reform, DPER, also has a role.

The Department said it could not re-grade the positions as ‘no cost increasing claims for improvements in pay or conditions of employment may be made or processed during the currency of the Public Service agreements’.

The respondent engaged in further correspondence with the Department on August 28^th 2014, putting forward the case for re-grading the claimant’s position. It did so again on March 27^th, 2015 through its Chief Executive.

The Department reiterated its position on November 24^th 2015 which coincided with the union referring the matter to the WRC.

Further correspondence from the respondent, specifically as to whether the question of the re-grading had been put to DPER elicited the response that there was no change on the position.

Findings and Conclusions.

The issue for decision here is relatively simple and turns on two points.

Are the claimants correct in arguing that the embargo on a ‘cost increasing claim’ relates only to a traditional pay claim where a worker, or group of workers formally serves a claim for an increase on their existing pay rate?

Or, does it apply to any movement in pay which has the effect of ‘increasing costs’?

Clearly, the decisions of the Labour Court referred to by the claimants are of significance, as is the fact that they were heard respectively on October 1^st 2013 and exactly a year later in 2014, and by different divisions of the Court and so can be said to represent a clear line of authority. And these decisions were made at a time when the public service agreements being relied on, (or strictly speaking being forced on) the respondent were in force and the Court was interpreting the meaning of the restriction on ‘cost increasing claims’ in similar circumstances to this case.

The union representing the claimants says that at no stage did it make a claim and that the case for a re-grading is based on the objective level at which the posts should properly lie. While cases under the Industrial Relations Act are very fact specific this does seem to bring this claim within the ambit of the Labour Court’s findings cited above.

In the first case (LCR 20616) a nurse was appointed to an established Grade within the public health service, a Clinical Nurse Manager Grade II, CNM II. She was appointed to what is known as a Band 1 Hospital. However the correct grade for the work being carried out by that claimant in a Band 1 hospital is CNM III.

The employer’s argument that she applied for and got the CNM II position was before the Court, as were the existing provisions in the public service in relation to ‘cost increasing claims. The Court, fully conscious of this and the ‘national implications’ pleaded by the respondent not only conceded the claim but did so retrospectively.

LCR 20862 was equally simple on its facts; the claimants were paid at Grade III, but they did the work of their Grade IV colleagues, and therefore claimed that they should be placed on that grade.

In this case the Court found as follows.

‘ Having carefully considered the submissions of both parties to this dispute the Court finds that the Claimants in this case are seeking neither a pay increase nor regrading but simply to have the agreed established rate (Grade IV) for the job for which they are employed applied to them’.

As will be seen the Court says that the Claimants in the case were not seeking a pay increase or regrading. I interpret this to mean that they were not simply seeking an upgrading based on the level of work already being performed, which might be a device to launch a pay claim, but on the fact that they were essentially wrongly graded by reference to a comparator grade.

The clear import of this decision is that where the work is at a level readily identifiable as being appropriate to another grade (and having been independently assessed as being so) and where this at a higher level, then this escapes the strictures of a very literal interpretation of a ‘cost increasing claim’.

It is clear that the respondent management is in no doubt that the current grading is the wrong one. The claimants say that their roles had ‘substantially changed’ since their appointment; a fact apparently endorsed by the respondent in its support for funding of the new grading, and of course by an independent and reputable consultant.

Undoubtedly, the process by which the claimants found their grading to be the wrong one differs in detail from the two Labour Court cases relied on by their union (although only marginally in respect of LCR 20862).

But I can see no difference in the principle at the heart of all three cases; which is that where a worker or group of workers can readily be identified as being wrongly graded, the rectification of that does not fall foul of the relevant public service agreement which was fully ventilated before the Labour Court and in this case.

On the most reductionist interpretation, the Court rejected the view that simply because an adjustment of the sort incurs additional expenditure in respect of a particular employee it is not proscribed by the terms of the public service agreement. The clear target of the phrase are traditional pay claims for percentage increases which the trade unions accepted would not be made as part of a quid pro quo in the public service agreements.

It would hardly have been the intention, and it would not be equitable to agree to locking in an employee to the unfairness of being underpaid by reference to a clear comparator and perpetuating what is in reality underpayment of that employee.

A final point was made in relation to the concept of cost increases.

The claimants in this case (and their colleague) were involved in a complete re-design of the organisation’s Content Management System. The requirements of anonymity prevent identification of this system but it well known to thousands of users for its accessibility, the ease of use of its interface and its value to the community. It initially cost one million Euros to commission but was completely re-designed in-house by the claimants and their colleague at no additional external cost. This must provide some context for any assessment of what constitutes a cost increasing claim, certainly when measured against the slightly more commercial barometer of value for money.

I am spared the necessity to rely on such an argument by the clear authority of the Labour Court decisions referred to which I apply and follow, as I am bound to.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the disputes in accordance with the relevant redress provisions under Schedule 6 of that Act.

I uphold both claims CA-000004501-01 and CA-000004512-01 and recommend that the regrading be applied from the date of this recommendation.

Dated:   7^th November 2016