Complainant

Respondent

Anonymised Parties

An acting storeman

A local authority

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-00031902-001

30/10/2019

The Complainant commenced employment with the Respondent local authority approximately 34 years ago and during this period he has held different positions. Since 2011 the Complainant has been in an “Acting” position of storeman. In making this complaint to the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969   he is seeking regularisation of the situation.

This complaint was received by the Workplace Relations Commission on 30th October 2019.

The Complainant commenced work the Respondent approximately 34 years ago in the bins section as a lifter then driver. In 2002 a competition was advertised to fill the post of stores person for the Respondent bins section. The Complainant was successful in the competition and was placed second on the panel. With the retirement of the permanent stores person in 2004 the Complainant started to fill the capacity on an acting basis within the depot for the Respondent bins service. Duties included but were not limited to stock-taking, maintaining records, ordering stocks, supplies and staff P.P.E, supplying staff with kit & equipment, maintaining stocks for first aid etc. The Complainant has fulfilled these duties since ever since.

In 2010 & 2011 the Respondent engaged with SIPTU on the matter of privatisation of the bin service. Following the privatisation of the bins service, the bins staff were redeployed to a new operations unit. The Complainant was still fulfilling his duties as the storeman, now with responsibility for the operations unit, which actually increased the amount of work within the store’s operations. This was down to the increase and diversification of the workload within the operations unit, rather than the specific nature of the bins service. It should also be highlighted that the Complainants payslip was no longer returning him as a “driver” but as a storeman.

In January to March 2013 the Respondent engaged the Group of Unions in the LRC for the formation of a new stand-alone entity, the “Public Realm”. This new standalone entity comprised the amalgamation of six separate entities (1) operations unit (former bins staff), (2) parks, (3) graveyards, (4) cleansing, (5) golf course and (6) graffiti removal crew. On 11th March 2013 agreement was reached with the Group of Unions and the Public Realm agreement was circulated. One of the major positions of the Group of Unions during discussions in the LRC was the regularisation of the long-term actors “The commission notes the unions long term objective of regularising all long term acting positions”, this was acknowledged by the commission and the Respondent HR.

Following the formation, a case was taken to the Labour Court by SIPTU which sought the regularisation of a long term actor within The Respondent’s Public Realm. This was case was ruled in favour of the SIPTU claimant, with a recommendation that the Respondent engage in a regularisation process for the Respondent Public Realm and wider out-door staff. The out-door graded staffs Group of Unions engaged with the Respondent HR department on the numbers, placements, areas and operational needs for the Work Force Plan (WFP) review and the wider issue of regularisation of long-term actors. SIPTU and our sister unions highlighted the long-term acting numbers and placements. The Complainant, and other long term acting storemen were highlighted in this review. In March 2015, The Respondent HR acting SEO wrote to SIPTU acknowledging receipt of numbers and placements but requesting that the Complainant and other long-term acting stores issues be parked while the 2015 review was on-going.

In the years 2016, 2017 and 2018 the matter was raised regularly by SIPTU through correspondence, Work Force Plan (WFP) meeting forums and Industrial Relations (I.R) forums. SIPTU highlighted that this non-engagement with the Complainant was causing financial penalisation as the Complainant was still being retained on an acting basis on the first point of the stores incremental scale.

SIPTU would point out that through non-regularisation the Complainant is losing approximately 2,800euro per year, pensionable.

In 2019 The Respondent regularised a temporary storeman in the Respondent housing section who had been in place for four years. This member of staff was appointed without interview and was placed on the fifth point of the stores incremental scale.

CONCLUSION

The Complainant has been a loyal, long serving member of the Respondent family of workers and the denial of his regularisation is nothing short of disgraceful. The Respondent have been engaged by SIPTU for nearly 7 years seeking regularisation of our member. We are asking that the Complainant be regularised immediately at the final point of the stores scale and that a financial settlement of 14,000euro, which would constitute back monies owed on regularisation dating back to 2015 be given to him.

The complaint submitted is that SIPTU are seeking the regularisation of the claimant to the post of Permanent Storeman at the appropriate point on the pay scale and full retrospection of monies.

The Respondent would refute this claim on the basis that the claimant has no entitlement to being regularised outside of competition for a position and he has been paid the appropriate rate for the Acting Post since his appointment where the custom and practice is to appoint non-officer grade employees to the minimum point of the Acting pay scale which is what occurred with the claimant.

Such Acting posts do not attract incremental credit.

Preliminary Issues

At the very outset the Respondent would note the complaint form states: “SIPTU and (the Respondent named) engaged in WFP discussions … to address a number of long-term acting issues.   One proviso was to engage separately around the stores positions…”.

It is clear from the complaint form that the current case concerns not just the claimant but other long-term acting posts within the stores area.

The Respondent would submit that the Adjudicator is precluded from hearing this complaint under S.13(2) of the Industrial Relations Act 1969 which states:

“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of  pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner”.

The Respondent would see that the issue per the WRC Complaint Form is in relation to pay and conditions for a body of workers and that the complaint is similar to LCR21699 where the Adjudicator in that case stated:

“Section 13(2) of the Industrial Relations Act 1969 provides a statutory restriction on the types of cases Adjudicators may hear. They may not investigate disputes connected with rates of pay, hours or times of work or annual holidays of a body of workers... Although the matter before me is not directly connected with rates of pay, hours of work or annual holidays it is my view that claims which by their very nature and character have broader implications are inappropriate for adjudication. If the worker was allowed to opt out from the Scheme the implications to the Employees and other staff members would be enormous. It would be conflicting with my function as an Adjudicator to knowingly create such a scenario.

In all the circumstances of this case I am satisfied that the dispute before me involves issues related to concerns of a body of workers. It is a claim which, if conceded, could potentially have broader implications for others.”

The Respondent would see that the current complaint, as per the WRC Complaint Form, is clearly related to pay and conditions (rate payable for acting appointments and retrospection of that pay) for not only the claimant but other workers (as identified on the complaint form) who are, have been or will be in an acting role and as such any concession of this claim would have broader implications for The Respondent, those other employees and the wider public sector. The Respondent would assert that in such circumstances it is not appropriate for the Adjudicator to hear the complaint and it should be dismissed as a Body of Workers claim as per section 13(2) of the Act.

There can be no doubt that this is a collective complaint similar to Shannon Airport Authority v A Worker AD1383 to AD1389when individual complaints for the same issue were submitted against one employer. The Labour Court determined that the Adjudicators decision was correct i.e. that the Adjudicator had no jurisdiction to hear the individual complaints as they related to a claim from a body of workers.

Background

The claimant has been in an Acting Storeman role since 2011; his substantive post is as a Driver in the Environment section. At the time of his appointment to the Acting Storeman post he was paid at the eighth point of his substantive grade. As per the existing practice for these roles, the appropriate rate of pay was determined to be the first point of the Storeman Scale and he was provided with an Acting Allowance in that regard. No increments are payable to such an acting role.

A Workforce Plan was agreed in 2015 with SIPTU, however this did not include Stores positions due to an impending Depot Review Process at the time. The Depot Review commenced in September 2017 and was concluded with SIPTU in December 2019.

Having completed the Depot Review with SIPTU Agreement, The Respondent are now in a position to carry out a Work Force Plan with regard to stores, which will include consultation with SIPTU and determine the appropriate number of permanent resources required for that area. As it currently stands (and prior to the Workforce Plan exercise) there are no additional permanent stores posts within The Respondent and all permanent stores posts are occupied.

Should it be determined that any additional permanent Storeman Posts are required, the Respondent would appoint persons to these posts in accordance with normal practices i.e. a confined competition in the first instance and thereafter by way of open competition. In such circumstances it would be open to the claimant to apply for such a post(s).

Respondent’s Position

The claimant in the current case seeks to be appointed to the post of Storeman on a permanent basis. In relation to this element of the claim the Respondent is very conscious of recent WRC and Labour Court cases as well as recent cases and complaints by other employees of SDCC seeking appointment and/or regularisation to Acting Positions without competition.

The Respondent would refer to LCR22087 The Respondent and Mr. Eugene McDonagh, which The Respondent would assert is almost identical to the current case (where an employee sought to be appointed on a permanent basis to his Acting Post). In this case, the Court dismissed the claimant’s complaint and found in favour of the Respondent stating:

“The Court has given careful consideration to the Parties’ written and oral submissions. It understands the Worker’s disappointment in circumstances where he has been required to revert to his substantive post after a very lengthy period of acting up in a more senior position. However, the Court is unable to uphold the Worker’s claim for appointment on a personal-to-holder basis to the acting up position he held for some twelve years. The Workforce Plan agreed between the Union and SDCC clearly provides for regularisation of acting up arrangements by means of a competitive process only. This is consistent with established practice in the local government sector.”

There is a clear and accepted understanding within the Sector that Acting Posts are temporary in nature and that at the end of the acting period, the staff member returns to their substantive grade. If a post at the Acting grade is approved, it will at that stage be advertised, initially on a confined basis. Staff who have been acting in such a post can apply through the confined recruitment process. If unsuccessful in the competition they would return to their substantive post.

The practice of staff reverting to substantive grades following (sometimes lengthy) periods of Acting at a higher grade is well established in the Respondent and in the Local Authority Sector. An analysis of the Respondents Acting posts from 2012 onward shows the following numbers appointed to Acting posts and who reverted to their substantive post once the period of Acting ended. The below also shows the period of time spent in the Acting post before reverting to their substantive post:

·         In 2012, 27 staff reverted to their substantive posts from Acting Posts.

·         In 2014, 12 staff reverted to their substantive posts from Acting Posts.

·         In 2015, 50 staff reverted to their substantive posts from Acting Posts.

·         Since 2015, following a Workforce Plan being agreed with Unions, at least 121 staff reverted to their substantive posts from Acting Posts.

·         The length of time Acting varied for those posts with 43 employees serving for between 1 to 6 years Acting and over 50 employees serving between 7 and 14 years in their Acting posts

·         There are currently circa 30 employees in temporary Acting Posts who will revert to their substantive posts once the period of Acting ends.

In 2015, The Respondent agreed its Workforce Plan with SIPTU for outdoor grades. Under the Plan, the first filling of vacancies was by way of competition confined to the Respondent, with subsequent posts filled by open competition. This was acknowledged and accepted by SIPTU in their correspondence of 19th May 2015 where it is stated “In respect of the regularisation of long-term acting posts identified…we wish to confirm our agreement that they be filled by confined competition as outlined by Management.” This would equally have to apply to any further permanent storeman posts resulting from the Workforce Plan for that area.

The Respondent would refer to ADJ00008655 in relation to a Council employee occupying an Acting post for a number of years and who subsequent to a competition for a permanent post, reverted to their substantive role, whereby the Adjudicator recommended “Concerning the petition for a recommendation for appointment to the disputed role I feel bound to follow the lead of the Labour Court in LCR20634. I so recommend”. The claimant in that case appealed to the Labour Court LCR21800 which also found in favour of the Respondent stating:

“The Court has been given to understand that the competition in question was conducted in accordance with relevant statute and collective agreements…The Court has been given no basis to understand, having regard to the fact that the process of appointment of staff in the sector is governed by statute and collective agreements, it could intervene in this matter. In all of the circumstances therefore the Court is unable to concede the Appellant’s claim and the appeal must fail”.

The Respondent would also refer to LCR20634 relating to another Council employee seeking to be appointed (regraded) on a personal basis outside of competition to an Acting post they held for a number of years. The worker in that case claimed, “the worker was unjustly demoted, the worker has suffered a significant loss of income, the worker has suffered a loss of status and position.” The Labour Court in that case found in favour of the Respondent stating:

“Having considered the submissions of each of the parties the Court finds that the re-grading of staff in Local Authorities is regulated by legal, public policy and collective agreement constraints. In this case the claimant seeks to be re-graded on a personal basis outside of those constraints. The Court is aware that there is a significant number of Local Authority employees that find themselves in the same position as the Claimant and who would seek comparable preferential treatment were the Court to recommend concession of this claim…accordingly does not recommend concession of the Workers claim.”

The Respondent also refer to LCR21801 in which a Council employee in an Acting role for a number of years sought to be appointed to that role outside of competition. The Labour Court again held and reaffirmed the established Labour Court position that appointment in the sector can only be made through competition stating, “The established custom and practice for the filling of posts such as that held by the worker is by competition”.

The Respondent see no difference between the cases referenced above and the current case. The claimant has held an Acting post for a number of years and seeks to be appointed to that post on a permanent basis. The Respondent reaffirm its position that the claimant can only be appointed to the role through competition as is the practice in the sector and cannot be appointed/ regularised outside of that process on a personal to holder basis. It has yet to be determined, through the Workforce Plan, whether any permanent posts will be required and based on that determination the claimant will either revert to his substantive post or be appointed to the post on a permanent basis (if he is successful in a competition for that post).

Conclusion

The Respondent would refer to its preliminary points and highlight once again that the claim as outlined in the WRC complaint form is in relation to a body of workers. As issues in relation to the pay of a body of workers are specifically precluded under the Industrial Relations Act for adjudication by the WRC, there is no jurisdiction for this complaint to be heard.

Without prejudice to the above, while The Respondent understand the frustration the claimant may have it is simply not an option for him to be appointed to his Acting Post on a permanent basis. In the first instance it must be established whether there is a permanent requirement for any additional post at this level and secondly, the claimant would have to compete on a confined basis for such a permanent post.

The Respondent is currently preparing its Workforce Plan for the stores area and once a draft plan is prepared, The Respondent will consult with SIPTU on this plan and seek agreement. Under the current workforce plan there are no additional permanent stores posts nor any vacant store post therefore it is premature to seek either regularisation or a competition for additional permanent stores posts until the Workforce Plan has been prepared and agreed.

With regard to the claim to be appointed to the appropriate point of the stores pay scale The Respondent would refute this in circumstances where the claimant was appointed to the Acting Post in accordance with custom and practice, which is on a minimum of scale basis. This is used throughout The Respondent for all similar Acting posts and any recommendation outside of the current practice will result in a further claim from a body of workers who are in a similar situation to the claimant. The Respondent would ask the Adjudicator to consider this point and whether it is appropriate to make a recommendation for an individual where a body of workers would be affected by any such decision.

The custom and practice is that such Acting Posts do not attract incremental credit.

I can understand the frustrations of the Complainant, he has been carrying out his work duties in an “Acting” capacity since 2011.

In saying this there are factors to be considered. The Respondent cites several recent cases to support their preliminary position that this complaint not only concerns the Complainant but other long-term acting posts within the stores area.

I accept the Respondent position that this complaint has a very strong potential to become a complaint on behalf of a body of workers.

At hearing the Respondent did say that having reviewed the Depot Review the Respondent is now in a position to carry out a Workforce Plan with regard to the stores which would include consultation with SIPTU and determine the appropriate number of permanent resources required for that area. As it currently stands (and prior to the Workforce Plan exercise) there are no additional permanent stores posts and all permanent posts are occupied.

It is my recommendation at this point that the parties should continue their engagement in a meaningful manner and agree an outcome. If permanent vacancies are identified as a result of this, they should be subject to the normal recruitment competition standards of the Respondent which have been accepted by SIPTU and endorsed by the Labour Court.

I cannot recommend that the Complainant’s position be regularised.

I cannot recommend that the Complainant’s position be regularised.

Industrial Relations Issue.