LCR22172

The dispute has a protracted history which it is not necessary to recite here, save to say that in January 2017 the Parties - with the assistance of the Workplace Relations Commission -agreed a process to resolve their dispute. A copy of the Commission’s proposals for the resolution was before the Court and the representatives confirmed that both the Council and the Union had agreed to those proposals. The Parties agreed that the Council would hold a confined competition in line with its Workforce Plan and the successful candidates would either hold a Class C licence or give an undertaking that they would achieve such a licence within one year of appointment. At that point in time, there were eleven drivers in acting positions who were in scope of the agreement.

On foot of the 2017 agreement, the Council proceeded to arrange driver training programmes facilitated by an external provider to prepare interested candidates to sit for their Class C licence. The Council then held an internal confined competition in April 2019. The situation in relation to the eleven drivers originally encompassed by the agreement is as follows:

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  •Four did not undertake the training provided and did not subsequently participate in the confined competition;

  •Four successfully undertook the driver training to obtain their Class C licence but only two of them went on to apply for the role;

  •Two were unsuccessful at the training stage and they, therefore, did not progress;

  •The final driver is now acting in a higher role and did not participate in the confined competition.

Although initially instructed by the Council to revert to their substantive posts, the unsuccessful candidates – by agreement, pending the outcome of the within referral to the Court – remain in situ and continue to be in receipt of an acting up allowance. The Union submits on their behalf that the terms of the 2017 agreement should be interpreted as meaning that the four acting drivers who are at the centre of this dispute should have been appointed and given an opportunity to obtain their C licence within one year following their appointment. The Council submits that the four drivers in question neither availed themselves of the opportunity to undertake the driver training nor applied to participate in the confined competition and are, therefore, ineligible for appointment.

Discussion

The Workforce Plan agreed between the Union and the Council provides for regularisation of acting up arrangements by means of a competitive process only. Both Parties to this dispute expressly and jointly agreed in January 2017 to implement a set of proposals that provided a mechanism for the regularisation of acting drivers employed by the Council. That agreement is consistent with the Council’s Workforce Plan and clearly provides for regularisation by means of a confined competition. The Council held that confined competition but the four workers who are the subject of this dispute chose not to apply. That being the case, they became ineligible for appointment on a permanent basis on that occasion and the Council’s direction that they return to their substantive posts was fully in order.

In all the circumstances, therefore, the Court does not recommend concession of the Workers’ claims.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
RK______________________
06/01/20Deputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Richard Kennedy, Court Secretary.