FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE-SOUTH - AND - UNITE DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Claim for full retrospection of pay from the date on which the rate of pay for the grade description should have been applied.
BACKGROUND:
2. This dispute could not be resolved at local level and was the subject of a Conciliation conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 2 February 2017 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 12 September 2017.
UNION’S ARGUMENTS:
3. 1. The worker was underpaid for the grade description of the role in which he was employed since 1995.
2. He has suffered significant financial losses as a result of the HSE's failure to ensure that he was placed on the nationally-agreed rate of pay for the grade.
3. His losses should be reimbursed in full so as to ensure the collectively agreed national rate of pay for the grade is honoured in its totality.
EMPLOYER'S ARGUMENTS:
4. 1. In 1994 due to ill health the worker was unable to continue with the duties associated with his position. Following representation from his union a similar alternative position was created which involved no lifting as he was medically unfit to lift any heavy objects.
2. He worked successfully in this position from 1995 until his retirement in 2016.
3. He queried his rate of pay in 2016 stating that he should have been on a higher rate of pay for the position he worked in. The HSE made several reasonable and generous offers in response to his claim all of which have been declined.
RECOMMENDATION:
The issue in dispute relates to an individual minibus driver who the employer contends was facilitated in 1995 with a new role when following an accident he could not continue in his pre-existing role. This facilitation was done on the basis of his retaining his existing terms and conditions. The rate of pay being contended for did not come into existence until 2007 yet the union are seeking to have it applied since 1995. The rate was applied to the worker’s pay from January 2016 and at Conciliation in an effort to resolve the issue the employer had moved to offer five years' retrospection.
The Union on behalf of the worker clarified their position at the hearing advising that they couldn’t dispute the employer’s contention that the rate was only introduced in 2007 and that in those circumstances they would amend their claim to the date it was introduced i.e. 2007.
It was accepted by both parties that the claim therefore covered the period 2007 to 2015 inclusive - a period of nine years.
The Court having considered the detailed submissions of both parties and the oral submissions made on the day recommends that the employer increases its offer to six years’ retrospection in full and final settlement of this claim.
Signed on behalf of the Labour Court
Louise O'Donnell
20 September 2017______________________
JDDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Deegan, Court Secretary.