ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00027003

Parties:

Complaint:

Date of Adjudication Hearing: 14/01/2021

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

This dispute refers to the non-payment of increments to an Administrator (the Employee) by the employer.

Summary of Employee’s Case:

The employee submitted that she commenced employment on 10th June 2003 as an Administrator. She maintained that her pay is linked to a collective agreement under the Local Development Social Inclusion Programme (LDSIP). Following a restructure her job was transferred in October 2014 under a TUPE to the employer. At that time, she was on point 3 of the collectively agreed Administration Salary Scale and maintains she has not received any increment under that agreement since then and was required in 2016 to sign a new contract. She signed this new contract without prejudice to her rights under the collective agreement. The employee maintains she did not consent to the collective agreement being changed. The employee further submitted that since 2016 management was aware of her dissatisfaction regarding her rate of pay and management was seeking a wage increase for her which ultimately was not granted.

The employee is therefore seeking a recommendation regarding her entitlement to be paid in accordance with the collective agreement which she maintained was a right transferred with her employment at the time of the TUPE.

Summary of Employer’s Case:

The employer accepted that the employee was transferred in 2014. The employer maintained that following new funding arrangements the employee’s contract was changed in 2015 and she accepted new terms and conditions in 2016 which also placed her on a new pay scale. It maintained that in any event the new pay scale was of greater benefit to her as the LDSIP scheme had been replaced by the Social Inclusion and Community Activation Programme (SICAP). In addition, as the employer was now under a new contract for funding it was not in a position to pay the employee any more than that is allowed for within the current pay arrangement.

The employer also contended that as the new contract was signed by the employee in 2016, any complaint she had regarding her pay was out of time. It was none the less seeking a resolution to the issue but maintained it could not afford to increase the employee’s rate of pay other than as per the current funding arrangements.

Conclusions and recommendations

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Having heard the evidence presented by the parties it is evident that there is a disagreement between them in relation to the status of the collective agreement, and whether by the employee’s signing of her revised contract of employment in 2016 has waivered any rights she may have had under that collective agreement. Furthermore, the employer was of the view that, notwithstanding it could not afford to pay anything more than the current arrangement, that the complaint was out of time in that the employee had accepted different pay increments in 2016 and had only recently raised the matter relating to her pay. The employee maintained she had never consented to a change in her pay arrangements.

In light of the issues raised by the parties, and the complexities as to the status of the collective agreement vis-à-vis, inter alia, TUPE entitlements, I recommend the parties be given further time to seek a resolution to the matter between themselves. It appears to me that all the factors that need to be properly considered have not been addressed by the parties. Therefore, it would be prudent that they consider these matters and seek a resolution between themselves.

In the event such an agreement cannot be reached between them the parties agree that the within dispute can be resubmitted for a recommendation to the WRC on or before 14th April 2021, or alternatively submitted for decision under the relevant statutory provision.

Dated:   22/01/2021

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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