Complainant

Respondent

Anonymised Parties

A surveyor

An engineering sub-contractor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019603-001

06/06/2018

The respondent is a UK company with a contract to provide engineering services to one of Ireland’s main utilities. The complainant is a surveyor and, having transferred under the Protection of Employees (Transfer of Undertakings) Regulations 2003, he has continuous service since 2004. His complaint is that he did not receive the 4% increase agreed between the company and SIPTU which was paid to his colleagues in January 2018.

On behalf of the complainant, Mr Sheridan explained the background to a pay deal agreed between the company and the union on September 1st 2017. This was at the conclusion of what he described as “protracted negotiations” and a recommendation of the Labour Court on May 5th 2017 (LCR 21450).   The final agreement between the parties in September 2017 provided for a 4% increase with effect from January 2018, 3% from January 2019 and 3% in January 2020. The complainant has not received the 4% increase paid in January 2018 because the company’s position is that his rate of pay is in excess of the rate for the job.

Prior to 2014, the complainant had been employed in the service laying part of the company, but he moved to the metering section, with no change to his rate of pay. He said that hourly rate of pay is €19.18 per hour.

For the respondent, Mr McGrath outlined the rationale behind the pay deal concluded in September 2017. When the contract on which the complainant is working was awarded to the respondent company in 2012, employees from several companies transferred to the respondent on different rates of pay. The resulting pay anomalies created industrial relations problems and negotiations commenced with a view to reaching an agreement on pay harmonisation. The negotiations went on for about three years and involved three separate hearings at the Labour Court over the winter of 2016/2017.

The agreement finally concluded in September 2017 provides for the “red circling” of wages for employees whose pay is more than the rates agreed for their jobs. The effect of this is that some employees will not receive an increase for the duration of the three-year harmonisation deal, and others will only receive the increases in year two or year three.

The complainant now works in the surveying department and, at the hearing, it was established that the rate of pay for this group of workers is €13.46 per hour. As the complainant is currently on €19.19 per hour, he is paid over 40% in excess of the standard rate. There is a multiplier effect of this rate when overtime and pension benefits are taken into account. The company is not willing to pay the increase agreed in the harmonisation deal to the complainant for a number of reasons:

1 The objective of the harmonisation agreement is to try to ensure that groups of employees doing the same job are on the same rate of pay.   Payment of the increase to the complainant would increase the disparity between employees;

2 The payment of the increase to the complainant would “fly in the face of the work that has been done” by the company and the union to harmonise pay rates;

3 The complainant is paid a rate for a higher-skilled job than the role to which he is assigned at present. It is open to him to consider returning to that job, and to benefit from the pay increases that might apply to him when he is on the correct rate of pay for the job;

4 Over the past four years, the complainant has been treated more favourably than his colleagues, as he has benefited from a rate of pay significantly in excess of the rate for the job.

This grievance has its genesis in the transfer of the complainant in 2014 from a higher skilled, higher paid job. At the hearing, the complainant explained that he had a bad back and that he found the old job difficult. He said that he is happy to continue in the role he is in at present.

It appears that the company accepts that the complainant is paid an hourly rate that is considerably higher than the rate for the job. I find myself in agreement with the company, that any increase in the complainant’s hourly rate of pay would only create a further pay gap between him and his colleagues. This goes against the harmonisation agreement and must be avoided.

I accept that the complainant feels that he has been treated differently to his colleagues, in not being paid the 4% increase in January this year. However, he has also been treated differently, to his advantage, as the company has not reduced his pay in line with the appropriate rate for the job he is currently doing. From any reasonable perspective, this discrimination is in his favour.

I have to conclude therefore, that the decision of the respondent to treat the complainant’s hourly rate as “red circled,” pending a catch-up with the actual rate for the job, is not unreasonable.

I recommend that there should be no change to the company’s approach to this issue.