Employee

Employer

Anonymised Parties

Education Support  Worker

A School

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-00040678-001

29/10/2020

The Employee was seeking payment of back pay since 2017 that has  been provided to other similar staff and that was due to her in line wither contract of employment and the Haddington Road Agreement and the Public Service and Pay Act 2017.

The Worker has been employed as an Education Support Worker since 2003.

The Worker’s salary has been aligned to the CDVEC Youth Worker salary scale since 2007. During the financial downturn her salary was reduced in 2010 in line with the Financial Emergency Measures in Public Interests legislation (FEMPI). As the provisions of FEMPI have been unwound the CDVEC Youth Worker salary scale salary scale has seen restoration under the auspices of the Lansdowne Agreement (2015) and the Public Service Pay and Pensions Act 2017. However, The Worker’s salary has not been restored in line with the CDVEC Youth Worker salary scale.

The matter has been the subject of bi-lateral communication between the Worker, her Representatives FORSA and the Employer but resolution has not been reached at local level. The Workers contract of employment states “The salary for this position is the CDVEC Youth Worker salary scale as advised by the Department of Education & Science”. This was further confirmed by a memo in 2008 from the Department of Education & Science to the School Completion Programmes which states “It is also recommended that Project Youth Workers be paid in accordance with the City of Dublin Youth Services Board (CDYSB) salary scale”.

The Worker’s salary fell for inclusion within the FEMPI legislation.

In 2010, The Worker’s salary was reduced by the Employer under the direction of Circular 0015/2010 from the Department of Education & Science.

This salary reduction was confirmed to still be applicable in Circular 0069/2015 issued by the Department of Education & Science.

The Department of Education & Science issued Circular 0027/2017 informing Education Training Boards of increased salary scales, including the CDVEC Youth Worker salary scale, which were increased as a result of Public Service Pay and Pensions Act 2017.

The Worker’s salary was not increased in line with the CDVEC Youth Worker salary scale.

The Department of Education & Science issued Circular 0076/2017 informing Education Training Boards of increased salary scales, including the CDVEC Youth Worker salary scale, which were increased as a result of Public Service Pay and Pensions Act 2017.

The Worker’s salary was not increased in line with the CDVEC Youth Worker salary scale.

The Department of Education & Science issued Circular 0056/2018 informing Education Training Boards of increased salary scales, including the CDVEC Youth Worker salary scale, which were increased as a result of Public Service Pay and Pensions Act 2017.

The Worker’s salary was not increased in line with the CDVEC Youth Worker salary scale.

The Department of Education & Science issued Circular 0049/2019 informing Education Training Boards of increased salary scales, including the CDVEC Youth Worker salary scale, which were increased as a result of Public Service Pay and Pensions Act 2017.

The Worker’s salary was not increased in line with the CDVEC Youth Worker salary scale.

The Department of Education & Science issued Circular 0063/2020 informing Education Training Boards of increased salary scales, including the CDVEC Youth Worker salary scale, which were increased as a result of Public Service Pay and Pensions Act 2017.

The Worker’s salary was not increased in line with the CDVEC Youth Worker salary scale.

The Worker raised the issue with her Employer. She received a response stating that her Employer  has not received any additional funding and is not in a position to give any salary increase to employees.

The Worker raised the issue with Forsa, who in turn raised it with the Employer and were advised that as the Schools Completion Programme is now funded by Tusla,  rather than the Department of Education & Skills that they were not obliged to follow salary scales set by the Department of Education & Skills.

The Worker has been employed under a contract of employment since 2003. The terms and conditions of that employment have not been revised and the contract as originally signed remains in effect.

The employment contract states that the salary scale for this position is the CDVEC Youth Worker salary scale. This condition of employment did not change due to the change in the source of funding for the programme from the Department of Education & Skills to Tusla. Forsa are aware of a number of non-ETB School Completion Programmes, which have implemented pay restoration in line with the CDYSB salary scales. Some examples are:

·        Palmerstown SCP, Dublin 20

·        Bantry/Dunmanway SCP

·        Dublin 7 SCP

Forsa do not accept the assertion by the Employer that they are not obliged to follow salary scales set by the Department of Education & Skills. The Department of Education & Skills and Tusla are both public bodies and are governed by the same legislation with regard to restoration of pay.

The Worker did not enter into a new contract of employment with new terms and conditions as a result of the change in funding source so  her original contract of employment is still in effect and should be honoured.

The Worker’s contract states, in addition to being aligned to the CDVEC Youth Worker salary scale, that “The employee will also receive any increases agreed under the National Wage Agreement and the increments agreed by the Finance / Staff Liaison sub group of the Local Management Committee”. The Worker’s salary was reduced when the CDVEC Youth Worker salary scale was reduced in 2010. Forsa contend that her salary should have been increased in line with the restoration of pay in alignment with the CDVEC Youth Worker salary scale each time that the salary scale was adjusted. Her salary should not be adjusted in line with the salary scale only when it is being reduced. It should be adjusted with all changes to the salary scale.

 The Worker sought the increase of her salary in line with the CDVEC Youth Worker salary scale and the retrospective arrears from the time of the pay restoration adjustments to the CDVEC Youth Worker salary scale.

The Employer understood the Workers concerns and sought time to liase with the Department to secure additional funding. This was accepted at the initial  Hearing by the Worker and her Representative and the Employer was given time to deal with the matter and it was agreed they would liase locally on any issues that arise or need clarification with the Worker Representative. However,  following consultations, the Employer was advised to put the back pay into next year’s budget by the Funding Authority. The Workers salary has been adjusted to the correct salary and short term back pay been paid.

The Employees contract of employment is unequivocal as it states “The salary for the position is the CDVEC Youth Worker salary scale as advised by the Department of Science”.  Funding for the role was previously provided by the Department but has been taken over by Tulsa.

At the end of the first Hearing the Parties requested time to try resolve the matter locally. Since then the salary for the Employee has been brought up to the correct salary and back pay for this year has been paid. However, back pay for the prior year’s remains an issue. The Employee Representative requested a further Hearing as the matter could not be resolved locally. At the second Hearing the Employer stated they accept the back pay is due but have been advised by Tulsa to include the back pay amount in next year’s budget. This delay in payment was, reasonably, rejected by the Employee.  The Employer stated that if they were to pay the back pay now it may have to reduce some activities this summer. The Employee contested this and felt that some funds should be available to pay the back pay.

The Back Pay is due since 2017 and it is unreasonable and unfair to delay the payment any further as  it agreed by the Employer as due. I Recommend that the back pay should be paid to the Employee within six weeks of the date of this Recommendation.

Whilst the funding authority, TULSA, are not party to this Recommendation, the amount due is significant to the Employee and should be insignificant in the scale of TULSA’s annual budget especially since it is in its early annual financial cycle and I further Recommend that the Chairperson of the Employer formally request, copying this Recommendation, from TULSA the backpay to make the payment to the Complainant within six weeks of today’s date.  However, while undesirable, should TULSA not provide this payment, the Employer should pay the back pay from its own reserves within six weeks of today’s date. While unfortunately this may reduce certain Youth services in the summer, the legal obligation to the Employee has to take precedent.

Except for major future unforeseen circumstances (i.e. National Pay Reduction for example) the Workers pay should be maintained in line with CDVEC Youth Worker salary scale into the future.

 I Recommend in favour of the Employee.

Pay