FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : CARLOW COUNTY COUNCIL (REPRESENTED BY LGMA) - AND - FORSA DIVISION : Chairman: Mr Geraghty Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Upgrading claim.
BACKGROUND:
2. The Worker is a Social Worker with the Council. He claims that he should be graded as a senior Social Worker and first sought this in 2001. This claim has been consistently refused by the Council ever since then. Over the period since the claim was first made, it has been the subject of various conciliation hearings at the Workplace Relations Commission, (WRC), culminating in a referral to the Labour Court in 2017. The Court noted that discussions were taking place between the union and employer at national level regarding a national job evaluation scheme for the sector and stated that such a mechanism would provide an appropriate forum to assess the merits of the claim. The Court noted also that if the claim remained unresolved by these means, it could be referred back through the normal mechanisms. The Union argued that as the national talks had not progressed, this particular post should either be up-graded or evaluated independently. The Council refused to do either. The matter could not be resolved at conciliation and the Union had referred the matter back to the Court.
UNION’S ARGUMENTS:
3. 1. The Worker’s role has changed considerably from his original job specification. The change in Social Worker role was recognised by the establishment of a new grade of senior Social Worker in the local Government sector in 2001.
2. In a similar case, the Labour Court had recommended that a similar post in Leitrim be re-graded. Senior Social Worker posts had also been established in a range of other Local Authorities and the volume of work and responsibilities in this Council were greater than Kilkenny, where there is a Senior Social Worker post.
3. The Worker is doing the work of the more senior grade, including supervision of staff.
4. The Council in refusing the claim relies on its right to manage and its decision that a senior post is not required. The Council has relied on the recruitment moratorium and FEMPI legislation, but it has never contested the detail of the claim.
5. This is a minor claim within the terms of the various Public Service pay agreements.
6. The Union seeks that the Worker be up-graded with effect from July 2003, when a detailed claim was first made. Alternatively, if the Court feels that an independent evaluation is required, the Court is asked, given that the issue has been on-going for so many years, to consider specifying a period within which this should be carried out and that if it is not carried out within an appropriate period, the Worker be appointed to the Senior scale on a temporary basis—pending the evaluation.EMPLOYER'S ARGUMENTS:
4. 1. The Council has consistently rejected this claim. While the workload has increased, the seniority of duties has not changed and a comprehensive staff support structure has been put in place.
2. It is a matter for the Chief Executive to determine work-force requirements and no need for a Senior post has been identified. The Worker is not required to carry out the full range of duties associated with the higher role. To impose a post that is not required would undermine management’s ability to manage.
3. This is a cost increasing claim, contrary to the terms of various Public Service agreements. The retrospection sought would breach the terms of the staffing moratorium that applied within the time concerned.
4. This re-grading claim is no different from other claims where employees believe that they should be up-graded based on their own subjective views. Concession of this claim would have repercussive effects.
RECOMMENDATION:
The Court does not have the means, nor is it the Court’s function, to carry out job evaluations. Therefore, when grading of posts is in contention, the Court needs to avoid making judgements that are not based on clear, and established, facts. For this reason, the Court is not, in the instant case, going to issue any judgement as to the Worker’s correct grading and it is certainly not willing to recommend any possible retrospection.
Rather, the issue for the Court is to consider the question of whether an independent job evaluation exercise should be carried out.
The Court notes in this regard both the failure to progress a national system of job evaluation and the clear possibility, articulated at the hearing, that, even if national agreement is reached, it is unlikely to cover the Worker in the instant case.
On the other hand, the Court has to be mindful that it is the right of management to determine its staffing mix and also to be mindful of any potential repercussions that could arise if a job evaluation is to be recommended in this case.
With regard to the management’s perceived staffing needs, the Court notes the Union’s position that the Council had not identified a need for a senior post, as the Worker was already carrying out the duties of such a post. The Court does not make a judgement as to whether that is accurate or not but does accept that it is a point that has some validity in suggesting that the proposition be tested through an independent evaluation, the outcome of which would determine if it is, as the Union argues, the ‘de facto’ position that the Worker is carrying out the range of responsibilities associated with the senior role.
The Court is mindful also that this issue has remained unresolved for so long and that the arguments advanced for the Worker’s position have never been tested properly in all of that time.
In the view of the Court, these factors render the circumstances of this case somewhat unique and capable of being distinguished from other cases, thereby avoiding the prospect that a recommendation in this case to have an independent job evaluation could be used by others to advance their own claims. This is a legitimate concern of the Council.
In all the circumstances, the Court considers that an independent job evaluation should be carried out to test the Worker’s assertions that his post is under-graded for the level of responsibilities that it carries. The parties should liaise in order to agree who should carry out this evaluation and should agree a time-frame that brings this matter to a speedy but thorough conclusion.
For the avoidance of doubt, the Court wishes to make two points.
Firstly, this is not a precedent and this Recommendation arises because of the particular factors of this case.
Secondly, if, (and the Court emphasises that it is not trying to pre-determine the matter), this exercise results in an outcome that suggests that the work involved warrants grading the post at a higher level, it is the post that should be up-graded, not the individual. In that event, the post should be filled in accordance with the well established competitive process that was outlined at the Court hearing.
Signed on behalf of the Labour Court
Tom Geraghty
LS______________________
08 April 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Louise Shally, Court Secretary.