Worker

Employer

Anonymised Parties

A Library Shelving Supervisor

A University

Representatives

SIPTU

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-00023634-001

29/11/2018

The Worker referred her dispute to the WRC on 29th November 2019 contending that she is wrongly graded and paid the wrong rate of pay.

The Worker submits as follows:

The Worker has been employed by the Employer as Library Shelving Supervisor since 1999. She supervises a team of 14 or so library shelvers.

The Worker’s terms and conditions of employment provide for remuneration at a differential of ‘18% from the Shelvers scale, which in turn is linked to [named University] scale’. The Worker is now paid on the Employer’s own ‘Lib Shelver Superv’ scale, which is in practice personal to herself. However, as Library Shelvers on the top point of the scale at the [named University] are paid an hourly rate of €14.68, the Worker should be on a rate of pay no lower than €17.32 (118pc of €14.68). Her hourly rate of pay is, however, €16.68.

The Worker submits that she met the Employer’s Director of HR (HR) on 26th September 2018. She contends that at that meeting HR committed to a restoration of pay and said that she would consider the Worker’s grading and revert, which did not occur.

The Worker contends that she should be placed on a recognised university grade and that the grade should be Grade 3 (full-time salary of €48,481 at the top point) or Senior Library Assistant (€43,840). In her present position, the Worker is unable to apply for other administrative positions (which places her, a permanent member of the university staff, in an inferior position to that of agency workers), is laid off twice a year, receives paid annual leave at the statutory minimum level, and is not considered for membership of in-house committees etc.

Since 1st October 2018, the Employer has refused to hear grievances relating to grading in the University Grievance Procedure. This is despite the Employer having confirmed on 29th May 2017 its acceptance of A HR Employee & A Third Level Institution ADJ-0005665 (May 2017) which recommended, inter alia, ‘a process for dealing with grievances employees may have regarding their grades which may include a need for job-grading evaluation by a suitably qualified person(s)’.

The Worker therefore has no access to any internal avenue for the resolution of the dispute and so referred the matter for adjudication by the WRC.

Main arguments The Worker submits that the Labour Court held in Clare County Council v A Worker LCR21963 (April 2019) that ‘[t]he Court does not have the capacity, nor is it the function of the Court, to conduct a grading evaluation at any time.’ The Worker does not ask the Adjudication Officer to conduct any such exercise.

Authorisation by the Department of Education & Skills of job evaluation exercises for administrative staff by the university was explicitly envisaged in the ‘LCR Note re Education Sector Measure in Proposed Lansdowne Road agreement’ following receipt of a business case for such an exercise. The Worker does not understand the Employer to have sought any such authorisation.

The Labour Court has consistently taken the position that the existence of a collective agreement precluding cost-increasing claims during its life should not be a bar to payment of the appropriate rate for the job e.g. HSE West & A Worker AD1242 (May 2012).

Moreover, the Worker contends, by the same reasoning, that restriction on the conducting of job evaluation exercises by the Employer imposed by government departments are not intended to nor can reasonably justify the continued remuneration of a worker at the wrong rate of pay.

Recommendation sought: The Worker seeks a recommendation either that she be remunerated according to either of the Administrative Grade 3 or Senior Library Assistant salary scales with effect from 29th May 2018 or that a person with expertise in job analysis be commissioned by the Employer to carry out an evaluation to determine whether or not she is correctly graded.

The Employer submits as follows:

The Employer noted that an objection to an investigation of the dispute was notified to the WRC.

The Worker took up the post of a Library Shelving Supervisor in the Employer University on a temporary basis for the academic year 1999-2000 and has continued in this role to date, receiving incremental pay.

A new salary scale was negotiated by Library Management, HR and SIPTU for the academic year 2004-2005. A percentage differential was agreed at this time whereby the Shelving Supervisor would receive 18% increase in pay to that of the Library Shelver.

The Worker was permanently appointed in this role reflecting the new negotiated salary scale with effect from 1st March 2005. The Terms and Conditions of the post are clearly set out as part-time, term-time and pensionable to cover the academic year September-May in line with service needs.

The Employer submits that the position that the Worker holds clearly sets out the terms and conditions of the post and is based on the service requirements of the unit.

The percentage differential which was agreed in 2005 still remains whereby the Shelving Supervisor receives 18% increase in pay to that on Library Shelver.

While the Worker was, and is, eligible to apply for all applicable jobs within the Library, the Worker contends that she is unable to apply for other administrative post within the Employer University. The HR office have been in consultation with SIPTU for the last number of months and have agreed that, going forwards, all University staff may apply for administrative grade competitions including Technical and Library Staff. The Worker is currently entitled to apply for these administrative positions that arise within the Employer University through fair and open competition.

The Employer submits that there is currently no Job Evaluation Scheme within the Higher Education Sector. However, the Employer is in continuous consultation with other universities and the relevant Unions on a proposed Job Sizing / Review. Authorisation for such a scheme has to be sought from the Department of Education and Skills with the approval of the Department of Public Expenditure and Reform.

As the Employer Grievance Procedure sets out that “grading is not a matter for the grievance procedure” the Employer have committed to reviewing a number of posts in respect of hours of work and contract type. To that end, the Employer has engaged the services of an independent expert to review a variety of posts which include Library staff.

The Employer submits that, as there is percentage differential attached to this post, the claim constitutes a significant cost increasing claim which, under the Public Service Agreement, is outside the scope of the Employer at this time. The Employer have received a number of similar re-grading referrals and applications from staff and their respective Unions on their behalf. Therefore, such a claim cannot be conceded on that basis.

The Employer exhibited correspondence from the Department of Education and Skills which raised the issue of referrals for WRC Adjudication under Section 13 of the Industrial Relations Act, 1969. This letter was issued on foot of the Department becoming aware that a number of individuals have been pursuing employment terms and conditions by way of adjudication under this section rather than through negotiation and conciliation. The Department states: “It is Department Policy that where employees are engaging with staff interests in relation to issues or claims, they should do so through conciliation services of the WRC and/or Labour Court as appropriate rather than by way of adjudication”. The letter also states that the Act cannot be used for referrals concerning pay, hours of work or annual leave. The Department’s view if that a grading claim is, de facto, a pay claim and have cautioned the Employer on agreeing to referrals involving such claims without the prior sanction of the Department.

The Employer asks the Adjudication Officer to find in its favour.

In relation to the preliminary matter of the objection by the Employer to an investigation of the dispute by an Adjudication Officer, I note that Section 13(3)(b) of the Act stipulates as follows:

“(b) A rights commissioner shall not investigate a trade dispute— (i)… (ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.”

Section 36 of the Industrial Relations Act 1990 clarifies the requirements for making objection under subs. (3)(b)(ii)

“36.—(1) An objection under section 13 (3) (b) (ii) of the Industrial Relations Act, 1969, by a party to a trade dispute to an investigation of the dispute by a rights commissioner shall be of no effect unless it is notified in writing to the commissioner within three weeks after notice of the reference of the dispute to the commissioner has been sent by post to that party.”

The Employer was notified by letter dated 12th December 2018 of the reference of the dispute to the WRC. Correspondence objecting to an investigation of the dispute by an Adjudication Officer was received by the WRC on 4th January 2019 and, therefore outside the three weeks’ time limit.

I note that the Parties confirmed at the adjudication hearing that the matter of the Worker’s eligibility to apply for administrative grade competitions has been resolved.

There was no dispute between the parties that initially the Employer had in place a separate process to deal with grievances in respect of grading. The parties agreed that the Job Evaluation Appeals Procedure and the Promotions Procedure effectively ceased operation and was never revived. As a result, the Worker was left with no option but to attempt to utilise a grievance procedure. However, the grievance procedure specifically excludes any grievances in respect of grading. This was communicated to SIPTU by letter dated 1st October 2018 from the Director of HR:

“As already advised the University Grievance Procedure clearly sets out under section 2(g) that ‘Grading of posts is not a matter for the grievance procedure. This should be dealt with by the Job Evaluation Appeals Procedure or Promotions Procedure.’ Therefore, I wish to advise that the unheard grievances that relate to grading of post will not be a matter to be dealt with under the University Grievance Procedure.”

There was also no dispute that the Employer had engaged an independent expert to review a number of individual cases in respect of the matter of grading. However, as the Worker proceeded with the WRC process she was not included in the independent review as a result.

The parties engaged constructively at the adjudication hearing. The Employer committed to engage and undertook to include the Worker in the independent review which is currently undertaken.

Having considered the submissions of both parties, I recommend that the Employer, if it has not already done so, includes the Worker in the ongoing review by a suitably qualified person with expertise in job grading analysis with a view to carrying out an evaluation to determine whether or not the Worker is correctly graded.

Moreover, I recommend that the Employer reviews its procedures to ensure compliance with the S.I. 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures to include a procedure for dealing with grievances related to grading of posts and/ or job-grading evaluation.

For the avoidance of doubt, I confirm that this recommendation is particular to the unique facts and circumstances of the instant case and that it cannot be quoted or used by either party or any other party in any other case.

Job grading-evaluation