Worker

Employer

Anonymised Parties

Sanitary Caretaker

A Public Body

Representatives

 SIPTU

 Human Resource Manager

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-00045613-001

10/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00045613-002

10/08/2021

On August 10, 2021, the Union on behalf of the Worker, who worked as Water Caretaker lodged two claims with the WRC

1 Not paid the appropriate and commensurate rate of pay. Seeking Retrospection.

2 Regularising of Acting Up

The Employer is a Public Body and has rejected both claims.

Both Parties were represented and both parties submitted written outline submissions of their respective positions. 

The worker is a long-time employee with the Water services.  In April 2011, he transferred in as a Temporary Wastewater Inspector.  The Complainant is seeking career progression through the appointment to a technician position as allowances paid to that grade were not paid to him when he did locum.

CA-00045613-001 and CA-00045613-002 (claims worded the same)

In December 2013, he became permanent as Sanitary Caretaker 5 with an extra duty responsibility to cover the Wastewater Inspector in the same zone.

The Worker never received the same 5 allowances as the other Wastewater Inspector.

The Worker’s role has changed since 2013 and he now carries a range of extra duties, which are not reflected in his pay.

Surveys, Leak detecting, Validation, Monthly reports

These roles are carried out by a different grouping within the employer’s area of responsibility.

The Worker is seeking a recommendation that gives effect to “monetary appropriate to the positions that he is undertaking …………. within the water services “

The Union catalogued a record of courses taken and led out by the Worker in the case. They contended that the Worker had contributed “over and above to the service” and should be paid properly.

A weekend stipend of €79 is disputed in the context of weekend cover.

The Worker spoke freely about his dissatisfaction at his perceived inequitable treatment and submitted his need for resolution.

The Employer representative confirmed that the Worker commenced work as a permanent general operative in September 2008.

CA-00045613-001 and CA-00045613-002 (claims worded the same)

The Employer has rejected the claims advanced. It was the Employer case that the Worker has been paid correctly. The grade of Wastewater Inspector is a national grade and pay is determined by a Government Dept.

The Worker was successful at internal competition for the temporary role of Wastewater Inspector in 2011 and was appointed on May 3, 2011.This position was regularised later than year and the worker was appointed on a permanent basis to the role.

The Employer representative set out the distinction between the roles of the three Wastewater Inspectors based at Zone 1

1 Two posts have an unplanned /emergency function

2 The workers position has a more elective function regarding leak detection

The Worker is in receipt of a Union agreed “cover allowance “of €30 per day in respect of locum cover for other staff. He also receives overtime. These payments were catalogued in the Employers submission.

The Employer submitted that during recent engagement with the Union and the Worker, he had sought a regrading from his outdoor grade to the Officer grade of Technician.

The Technician grade requires specific qualifications and the worker had not applied for a live vacancy in the grade. There was no opportunity for a lateral transfer into the role of Technician.

The Employer argued that the effect of a concession of the claim for regrading of the post would be far reaching and would have wider implications across the wider public body, if not nationally. The claim was cost increasing in light of the pay distinction of both grades.

The Employer contended that the Worker worked to role and the description of his range of duties did not veer outside his pay grading.

The Employer could not identify any basis on which the claim could be realised. There was no provision for job evaluation available.

The Employer concluded that the worker was paid an appropriate grading on which a daily rate was superimposed for locum duties, with supplementary pay for overtime worked

The worker was not owed any monies and there was no opportunity for an automatic upgrade.

In conducting my investigation, I have considered all relevant oral and written submissions presented to me by the parties.

Both claims under the IR Act were worded in the same manner. While I understood that the Worker is currently seeking a Technician position, I was not as clear just how this claim started outside the Worker seeking to receive recognition for his actual work. I understand that job evaluation is not currently available at this Employers.

This is an employment governed by collective bargaining.

It is important for me to reflect what I heard at hearing. In this case, I have identified a worker who needs assistance with career progression. Having been appointed to his present role in December 2013, through an internal competition, he understandably wishes to advance to match his capacity within the service.

He has been unable to identify a viable pathway in that regard and has grounded his claim for advancement on seeking to build on his acting up record. Neither Party was aware at hearing if the employer provides funding to cover the bridging qualification identified for the Technician position and perhaps, the parties could continue to explore that window at base.

I have identified an Employer, who has acknowledged the workers high level of productivity and record change, but has encapsulated that in the wage, plus allowances paid. The Employer has declared that the wage is a correct fit for the work done. They went one step further, when they argued that concession of the claim would be calamitous and cost increasing within the service.

The matter of payment for weekend working requires clarification between the parties.

However, I must have regard for the scope of my delegated role in this case. I am an Adjudicator, compelled in this case to practice in accordance with the provisions of section 13 of the Industrial Relations Act, 1969.

This normally provides me with a considerable scope to consider events /claims through the lens of

 “Fairness and reasonableness “as starting positions, prior to assessing for merit before making a recommendation.

On this occasion, I have some difficulty when I consider the restrictions placed on me by Section 13(2) below

13.— (1) …]

(2) 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 worker) 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.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

I have identified that the grade of Sanitary Caretaker 5 is not a unique post. It is a universal grade and present in a body of workers in this case. The upward progression from this base will be of shared interest to the workforce at large.

This prevents me from investigating the matter further.

At hearing, I brought an article from IRN to the attention of the parties as it reported on the status of LCR 22414, where the Court had recommended that a claim in respect of water caretakers at Kilkenny Co Council should be engaged at an “appropriate national forum” as the matter is one with “potential ramifications for other local authorities “

I noted in particular an extract of that Recommendation, which said:

“Furthermore, the council advised the Court that Irish Water communicated a willingness to engage on the subject with a view to a consistent and national approach on the matter where all local authorities hold the same staff and requirements in relation to water caretakers “

The Court directed the parties into meaningful engagement at an appropriate national forum

I have also taken guidance from LCR 22291, South Infirmary Victoria Hospital and A Worker., 2020, this case involved a claim by a consultant for payment of a nationally agreed rate of pay

I have found it helpful to reflect the Chairman of the Labour Court in this case, when he stated in the course of declining jurisdiction in the case

:

“It is axiomatic that any decision issued by the Court in this matter has the potential to affect the criteria under which a post in the publicly funded hospital system qualifies as a Head of Department post within the meaning of the agreed pay scales and also to affect the selection mechanisms for appointments to such posts. It is common case that the issue of criteria under which a post becomes a Head of Dept is a matter bargaining between the parties nationally and is not yet subject of agreement. It is to be presumed that a national arrangement for appointment to posts of Head of Dept to be by election of peers would require a collective agreement also at national level insofar as such an arrangement would replace the existing national arrangements for competitive recruitment processes “

I would ask the parties to reflect on that definitive statement and return to read the nuances contained in that Recommendation.

There are distinct parallels with the claims before me and more work to be done on career progression for workers.

CA-00045613-001

I am unable to conclude my investigation in this case as the claim relates to a body of workers grades and I lack the jurisdiction to take the matter further.

CA-00045613-002

I am unable to conclude my investigation in this case as the claim relates to a body of workers grades and I lack the jurisdiction to take the matter further.

Allowance for Acting Up, Career Progression,