ADJ-00005232

Complainant

Respondent

Parties

A Head of Group

A University

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00007305-001

02/10/2016

The Complainant submitted a claim for inclusion in the job evaluation exercise on October 2, 2016. The Respondent is a University and has disputed the claim.

The Union, on behalf of the claimant introduced the claim as following on from a protracted Industrial Relations landscape where the “ inadequate and unfair “ pay rates for University Staff based in a neighbouring Institute were subject to an elaborate third party framework which culminated in an agreement that an external expert , Mr E.was appointed to conduct a job evaluation exercise .

The Claimant had submitted his position for evaluation had commenced the process and was prohibited from completion of his job evaluation by the respondent.

He submitted an appeal on 30 March 2016, updated on 21 April, 2016 .The appeal was based on a submission that

“ Mr E now determines the appropriate scoring for my job based on the attached co-signed job description which was previously supplied to ( external Consultants ) as part of the 2014 job evaluation exercise “

He based his appeal on the facts :

1 Terms Of Reference provided for actual placement of Institute based University staff at the appropriate point of the University pay scales.

2 The Claimant had worked as an Institute based University Staff from 1983.

3 He was not an exempted grade

4 The job evaluation exercise could not be interpreted as excluding grades as that was not the intention of the 2014 WRC agreement.

5 In accordance with the WRC agreement, he sought to be placed on a salary scale on the appropriate point on the appropriate scale.

6 He referred to a number of internal considerations for the Institute

The Union drew the attention of the hearing to the WRC Agreement of 24 February 2014, and contended that the claimant was properly encompassed and covered by this agreement, where the sole exclusion grade was that of Post Doctoral Researchers. The claimant contended that he was “an Institute based University member “and as such had the standing to be included in the agreed job evaluation exercise.

The Union submitted that the claimant had been wrongly excluded from the job evaluation exercise. The respondent had contended that the claimant

1. Was on a University Pay Scale rather than an Institute Pay scale.
2. The claimant had successfully availed of the Admin Grade Review process in 2003/2004

In 2004, the claimant submitted that he had obtained a high score of 873, and the respondent told him that the score would merit a move up several scales, but that the rules only permitted a one scale step of upward alignment as per the regrading exercise. He was advised at the time to seek another regrading within a two year window, but nothing further developed and he remained on the same salary scale. By 2008, the regrading process was completely shut down by the Respondent.

In the intervening 10 year period, the Institute had had a number of changes of Manager and the issue of the complainant’s salary lay dormant until the present job evaluation exercise.

On 12 September , 2016, Mr E recommended that :

Given the nature of the issue, there is no agreement relating to whether the claimants position can be evaluated within this process or not, I recommend that the parties either seek clarification through the WRC or refer the matter for Adjudication “

The Union sought an opportunity for the claimant to conclude the job evaluation process with Mr E and saw no basis for his exclusion.

The complainant addressed the hearing in support of his claim .

The Institute is a leading European Research centre of excellence,created in 2004 employing 500 staff and all employees are employees of the University.

The Employer submitted that the context of the Union claim ,was the inclusion in a job evaluation exercise agreed with two Unions to address a claim for pay parity between Institute staff ( not on salary scales) and University staff , on salary scales.

The respondent submitted that the majority of staff in the pre Institute days had been historically remunerated on the basis of salary with additional performance based increases having no link to other salary scales in the University .On creation of the Institute, this pay system was maintained and the system of performance based remuneration continued until ceased in 2010.There are no nationally approved salary scales for Research or Research support staff.

The University had placed the claimant on a University salary scale since his commencement date in 1982.He currently holds a very senior role and receives Senior Administrative   grade 8 salary scale.

The Respondent described the claim lodged by SIPTU in May 2010 as being on behalf of the 180 Institute based staff, who were not on salary scales, as one of seeking parity with the Respondent's colleagues on salary scales .IFUT subsequently joined with SIPTU on the claim and identified the members affected by name with the University salary scales viewed as comparator pay scales. The claimant was not listed on these communiques .These emails were resubmitted by the Union on 29 April, 2011 with a view to the claim being considered by the Department of Education and Skills .The claim was precluded by the Public Services Agreement and was heard by the Labour Court on 9 March, 2012.

The respondent submitted that the claim had been rejected by the Court and the Labour Relations commission convened some hearings following a period of Industrial action which culminated in an agreement on progression on 30 August 2013.

1 The LRC set out the parameters for settlement of the pay issue in dispute as the best that can be achieved at this point in time.

2 The parties agreed to enter talks on terms of reference for the purposes of commencing an internal evaluation exercise to establish the correct rate of pay for the employees of all grades with the Institute.

3 The Terms of Reference will provide an appeal mechanism and urgent completion of the evaluation exercise.

The Respondent engaged on these proposals for the way forward, but had difficulty with the Union position that there would be agreement in advance of the job evaluation exercise being carried out regarding the timing and manner of implementation of any outcome from the job evaluation. Further Industrial action took place and the matter was referred to the Haddington Road Oversight Group.

On 24 February 2014, agreement was reached at LRC on a procedural timescale with regard to implementation of the findings of the evaluation process and the Industrial action was suspended.

The Respondent submitted that a high level process consisting of a joint selection panel for procurement of Independent Consultants ,an Oversight Committee and an Appeals Officer all directed at resolution of the “ long standing pay parity claim “

The Job Evaluation Exercise report covering 182 staff was provided to all staff on 22 December, 2014. This was not accepted by the Unions and the Labour Court reviewed the status of the dispute and on April 10, 2015, the Court notified the University that it was not in a position to advance the resolution of the dispute and further Industrial Action followed, causing the University to secure an injunction against picketing on main campus.

In May 2015, The LRC proposed that the Union side should process “ ten sample appeals” to be conducted by the original appeals officer according to the terms of reference set out in December 2014.This report issued in December 2015.

The Appeals Officer provided his report on the outcome of appeals of job evaluation results on 12 September, 2016.Of the 182 comprehended by the original claim 109 appealed the outcome of the External Consultants report .30 secured a revision of the first outcome. 17 individuals secured a proposed salary increase .The cumulative effect of both processes was described by the respondent as a proposed salary increase for 122 individuals, and for the remaining number, the current salary is higher than the proposed salary scale and point .Full implementation of the awards would add in excess of 1.5 million euro per annum to pay costs.

A further Labour Court hearing on implementation took place on 17 February 2017 .The recommendation was binding on the parties and he Court recommended that he outcome of the job evaluation exercise be implemented in full from 12 September, 2016.

The University raised a jurisdictional issue under Section 13(2) of the Industrial Relations Act 1969 and submitted that it precluded the Adjudicator from investigating a Trade Dispute. In so doing, the respondent relied on LCR 21161, where the Court had determined that the disputed classification of a new entry salary scale was not confined to one individual.” In these circumstances , the Court is satisfied that any decision that it would make in this case would actually or potentially affect the pay of a group of workers “ which in turn prohibited the claim ,which should have been processed under other provisions of the Industrial Relations Acts .

In addressing the substantive argument, the respondent re-affirmed that the claimant was not a party to or included in the union pay parity claim and was thereby precluded from the scope of the job evaluation exercise .The job evaluation exercise was a unique exercise confined to staff at the Institute who were not on University Salary scales .The respondent outlined stark reservations of the potential for knock on claims from within the 800 staff on administrative grades.

The respondent argued that the claimant holds the position of Head of Group at the Institute. The jobs of all other heads of group who were not paid on University pay scales and thereby comprehended by the job evaluation exercise were deemed by both the external consultants and the independent, Mr E to be equivalent to Administrative Grade 8 which is the claimant’s current level in terms of salary.

The respondent outlined that the University had discharged its obligations under the pay parity agreement and the job evaluation process had proved to be a protracted and exhaustive process. The respondent rejected he claim as being outside the scope of the process and was accompanied by the potential to re-open the pay parity claim and lead to repercussive claims.

I have given consideration to the extensive submissions both oral and written submitted by the parties. I have also reflected on the claimants personal statement in support of his claim .I am very aware of the extremely complex Industrial Relations back-drop to the claim, which led to a protracted period of unrest. It is clear from Mr Es’ report dated 12 September 2016, that he has identified a period of unease at the Institute associated with the job evaluation exercise. I am very mindful of the considerable expertise of this Independent expert in relation to job evaluation.

Preliminary Issue of Jurisdiction :

I have considered the preliminary issue raised by the respondent on jurisdiction. On 28 October, 2016.the respondent furnished a “no objection “to the case progressing under the Industrial Relations Act.

I have given some thought to LCR 21161relied on by the respondent and find that the determination of the pay of a new entrant caught up in the disputed interpretation of two Administrative Circulars from Depts. of Finance and Health must be viewed as a distinctly different matter than the subject of this claim.

Section 13.— Industrial Relations Act, 1969

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) ( a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

This claim refers to “Refusal to include me in an evaluation scheme” and was submitted to WRC on 2 October 2016. Both parties confirmed that the job evaluation process has long since been completed at the centre. This is endorsed in Mr Es’ report of September 2016 and the Labour Court Recommendation of February 2017 .

The final outcome of the Appeals Process is set out generally in this report .Separate, individual outcomes are also being issued .It should be noted that in line with the agreement……this is the final stage with the job evaluation exercise .

I find therefore that this is an Individual Dispute regarding a disputed right of passage to a job evaluation process which is not connected with rates of pay of a body of workers. The job evaluation exercise has concluded at the Institute and the claimant seeks inclusion to this process as a residual issue. I find that I have the jurisdiction to investigate the dispute as presented.

I have taken some guidance from LCR 21425 where the Labour Court on appeal found that a Clerical worker should not be prohibited from a Clerical Job evaluation scheme on an individual basis.

2         Substantive Issue

I have given careful consideration to both parties stated position on this claim. The Union on behalf of the claimant contended that he had a rightful place in the job evaluation exercise .The Respondent argued that he did not fall into the parity claim and could not rightly progress alongside the strict parity claimants at job evaluation stage as the University did not have the sanction for his inclusion

I found that the cohort associated with the claim from the outset evolved from an initial 76 Union members to 188 employees in 2015/2016, where 6 employees had departed .I have taken the time to detail both parties positions so as not to miss the acutely complex IR landscape associated with this claim .I found that the initial claim was cited as implementation of pay parity for Union members employed by the University at the Institute with their colleagues in the University .It was raised at the hearing that the claimant was not a Union member at the outset of the claim but joined in 2011. I noted that the External Consultants tabulated the grading and payscales of University Staff on main Campus and this served as a comparator field .

I understand the reluctance of the respondent to act on the claimants’ wish to partake in the job evaluation exercise for fear of knock on claims .However, I was very struck by the claimants own viewpoint in the matter . He had scored highly in a previous job evaluation process in 2004 but felt aggrieved that he had been bereft of an opportunity to revisit this , to at least review his salary over the subsequent years 2005 -2014. It was apparent to me that the Institute, while home to University employees was also based on a strong ethos of market forces .This dichotomy in my opinion goes to the root of this case.

It was clear to me that it has taken some time for both the Institute and the University to build the symbiotic Human Resource culture, now clearly in existence and this may have contributed to the contention of isolation cited by the complainant.

The Respondent described the cohort eligible for job evaluation as those not on the Respondent's salary scales, yet this is not headlined in any of the LRC agreements or the terms of reference.The comparator field was University based staff .

The Approach listed on 24 February 2014 Terms of Reference cited

“ The parties to this claim agree the Terms of Reference attached provide for actual placement of Institute based University staff at the appropriate point on the appropriate University scale “

The terms of reference went on to outline that the job evaluation exercise will be carried out towards the long standing pay parity claim …..This cannot be interpreted to exclude any employee/grade from the internal benchmarking exercise.

I found that the complainant obtained a revised job description signed by both he and his line Manager in May 2014 in accordance with what he understood was the right thing to do as the first step in job evaluation . I would have expected that if it was the intention of the respondent was to limit the pool of applicants for job evaluation, this action would not have been facilitated. The job description was received by the Consultants in December, 2014. I found that this created an extension of expectation on the claimant’s side.

It is not unusual that that some individual residual issues often termed anomalies exist at the conclusion of any agreement. In this case, the road to resolution took a significant ebb and flow approach over a protracted period . I found that the claimant initiated his application for job evaluation in good faith .I found that the Respondent did not rule out the application until July 1, 2014. I have given some thought to the respondents exclusion from the job evaluation on 1 July, 2014

1 He was informed that he had been on the Respondent's pay scale since commencement of his career.

2 He had availed of an Administrative grade review in 2003/2004 and did not apply for a subsequent review.

The claimant then appealed in March 2016, met with Mr E but the appeal was not permitted to proceed to conclusion and the claim was presented before the Adjudication service.

I have found that the claimant has been disadvantaged by his exclusion from the job evaluation process .I accept that he believes that he is “ stuck” on the outside of a process ,through which his immediate peer group has been upgraded to Grade 8 . He contends that his job has changed vastly in the 10 years since his last review and holds a firm view that he wishes to participate in a review at least and seemed pragmatic in that regard .

On balance , I found that while the respondent did not wish to disturb the agreement made in any way ,the respondent had permitted the claimant “ a start “ on the job evaluation front which was eventually stalled at the appeal stage due to a” lack of agreement relating to whether his position could be evaluated within this process or not “.This is an unenviable position for the parties to remain in ,given the claimants long tenure , obvious commitment to the position and the respondents genuine desire to preside over an implemented agreement and consequent stability .I noted at the hearing that four Heads of Centre were placed in three demarcated grades according to University pay Scales while 11 Heads of Group were graded as Grade 8 .

I find that the claimant in this case is employed by the University, but based at the Institute and deserves to have his job evaluated on the principles agreed between the parties in the spirit of fairness and equity .I find that his position should be benchmarked in accordance with the agreement on Administrative grades .

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

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

I recommend that the claimant should be given access to return to the job evaluation scheme appeal for Administrative Grades initially commenced   by Mr E , which should determine the grade and salary appropriate to the work he performs, on an individual red circled to post holder basis and as a direct consequence of his anomalous position .

I am guided in this recommendation by the claimants’ 35 year hybrid commitment to both the University and the Institute and the clear need for the parties to move forward .I recommend that this process be completed within 4 weeks of this recommendation and should be in full and final settlement of the claim .

Job Evaluation Mechanism