Complainant

Respondent

Anonymised Parties

A School Secretary

A Government Department 

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040768-001

03/11/2020

The Complainant is employed, as a school secretary, in a post primary school and has been in that role since 3 July 1978.

At the time of the hearing, the Complainant was on salary Point 16 (Long Service Increment) of the pre-January 2011 Grade lll pay scale under the 1978 secretary scheme.

The Complainant contends that, as the school where she works has reached the teacher whole time equivalent of 40 or more, she is entitled to receive remuneration in accordance with Clerical Officer Grade IV rates.

Having engaged with the Respondent in relation to the matter, without success, the Complainant submitted a claim to the Workplace Relations Commission, on 3 November 2020 under Section 7 of the Terms of Employment (Information) Act 1994.

That complaint, having been duly delegated to me by the Director General of the WRC, is the subject matter of this adjudication.

The Complainant submitted that, under the 1978 Clerical Officer scheme, there exists an entitlement to receive remuneration in accordance with Clerical Officer Grade IV rates when the teacher whole-time equivalent at a school reached 40 or more. According to the Complainant, the entitlement was further confirmed in the revision of remuneration rates in the context of Partnership 2000.

The Complainant submitted that, from 1 September 2019, the teacher whole time equivalent at her school had been 40, thereby entitling her to be paid as Clerical Officer Grade IV rates.

The Complainant engaged in considerable correspondence with the Department Payroll Section. According to the Complainant, she was advised that the Circular governing this type of upgrade was being revised by the Department's External Staff Relations Section and would be published following consultation with all parties concerned.

According to the Complainant, she was further advised that the Department’s Payroll Non-teaching Staff Section operates within agreed procedures and criteria contained in the relevant Department Circulars. She was further advised that, until such time as the revised Circular was published, the Department’s Payroll Non-teaching Staff Section has no authority to sanction an upgrade from Grade III to Grade IV in this type of employment.

According to the Complainant's submission, she then wrote to the Minister seeking her intervention and requesting that the Department comply with her pay entitlements and the terms and conditions of her employment. However, the Complainant submitted that the Minister failed to intervene.

Accordingly, the Complainant claims that she was left with no alternative but to seek the assistance of the WRC in pursuing her claim for Grade IV payment status. The Complainant stated that she was saddened and extremely disappointed that, after 42 years of loyal public service, she had to take her case to the WRC in order to force the Department to honor the terms and conditions of her contract of employment and for her to receive the benefit she believes she was fully entitled to.

The Complainant further submitted that she was never informed at any stage that the terms and conditions of her employment had changed. In addition, the Complainant stated that she felt her action in submitting her complaint to the WRC is also justified by the fact that the Department has failed to provide any date as to when the revised Circular would issue.

The Complainant also stated that in the drafting of a new Circular, the terms and conditions of her employment cannot be less favorable than those given to her in her contract of employment and under partnership 2000.

Consequently, the Complainant submits that, in any event, the issuance of a revised Circular is only relevant to Clerical Officers employed currently by the Education Training Boards sector and is not relevant to her under the terms and conditions of her employment. In this regard, the Complainant referred to the Minister having outlined to her, on two occasions, that the revised Circular will be relevant to the 1978 Clerical Officer scheme. In response to this, the Complainant submitted that, as a non unionised employee, she informed the Minister that she expected to be invited to be part of the consultation process as the terms and conditions of her employment cannot be negotiated away or reduced by third parties in her absence.

Based on the above, the Complainant contended that she is entitled to be upgraded to Clerical Officer Grade 4.

On receipt of that Respondent's written submission, which was submitted post the oral hearing, the Complainant availed of the opportunity to make further written submission in response.

The main focus of the additional submission made by the Complainant related to the Department's statutory obligation to ensure that any and all employees affected by the Circular 81/2020 were appropriately advised of any changes to their terms and conditions of employment as is required under Section 5 of the 1994 Act. In support of her submission in this regard, the Complainant laid significant emphasis on a Rights Commissioner recommendation [r-075691-ir-0917 September 2009], wherein it is stated that it is incumbent under Department to ensure every Clerical Officer employed under the 1978 scheme is communicated with on an individual basis in relation to changes in their terms and conditions of employment.

In conclusion, the Complainant submitted that the terms and conditions of employment as set out in DES Circular 0081/2020 are less favorable to her than those set out in 12 August 1998 letter. Consequently, the Complainant submits that, should the terms of this Circular apply to her (which she states they do not), then the Department has and had a statutory obligation to ensure that any and all employees affected by it are appropriately advised of any changes to their terms and conditions of employment as required under Section 5 of the Act.

Pre Oral Hearing:

In correspondence submitted to the WRC in advance of the oral hearing of the Complainant’s complaint, the Respondent advised that the, now published, Circular 008/2020 “Revised procedures for the upgrading of Grade III secretary post in schools to Grade IV posts (revision to Section 7 of Circular F39/1997), addresses the Complainant’s complaint.

Post Oral Hearing:

Following the oral hearing of the Complainant’s complaint, the Respondent submitted a written submission in support of and reflective of their position as set out at the hearing. That submission contained the following sections:

1)      The Complainant’s employment situation:

According to the Respondent’s submission, in this regard, that Complainant was on Salary Point 16 (Long Service Increment) of the pre-January 2011 Grade lll pay scale under the 1978 secretary scheme. The Respondent submitted that this is the highest point on this scale.

It was further submitted that the school, at which the Complainant works, currently employs two secretaries under the 1978 scheme following an amalgamation of two post primary schools in September 2009.

The Respondent’s submission detailed the number of Serving/Permanent CID WTE teachers in the Complainant's school, which ranged from 38. 23 in 2016/17 to 40.15 in 2020/21. The submission further stated that this latter figure is expected to be the same for 2021/22, however, it was pointed out that had not yet been decided.

The Respondent's submission further stated that, based on the above figures, the school does not qualify to upgrade a secretary employed under the 1978 secretary scheme as they currently do not meet the criteria set out under 7.1.2 of Circular 81/2020.

In addition, the Respondent submitted that there are two Grade III secretaries employed in the school and, therefore, even if the school did meet the criteria for the upgrade under Circular 81/2020, that upgraded post would be required to be filled by competitive process, as set out under 7.2.2 of Circular 81/2020.

The Respondent also submitted that the letter dated 12 August 1998 (which has now been replaced by Department Circular 81/2020) does not explicitly set out the manner by which a post should be upgraded i.e. competitive process or seniority.

2)      Terms and Conditions of Employment - Statutory Authority of the Minister:

Under this section of their submission, the Respondent referred to the Education Act 1998 (as amended by the Education (Amendment) Act 2012). The Respondent made particular reference to Section 24 of this Act whereby the Minister, with the concurrence of the Minister for Public Expenditure and Reform (DEPR), is authorised to determine the terms and conditions of employment, including remuneration, for teachers and other staff paid from Oireachtas funds. It was further submitted that the Minister has a legal right to set terms and conditions of teachers and other staff.

According to the Respondent’s submission, it is the long established, standard and accepted practice for the Department to use a centralised approach to agree the terms and conditions of staff employed by the Department. It was further submitted that it is not tenable nor was it the practice of the Department, Management Bodies or Trade Unions to engage with individual employees in the in the negotiation of their personal terms and conditions of employment.

3)      Department Circulars:

It is submitted by the Respondent that agreed terms and conditions are set out in and communicated via Circular letters. It is further submitted that this is the most appropriate and efficacious manner to disseminate information to employers and employees for further dissemination (via the Management Bodies and Chief Executives of ETB’s and Trade Unions)

The Respondent further submits that this centralised approach to terms and conditions is also recognised by the Workplace Relations Commission, who facilitated the agreement in 2018 to amend the terms and conditions of this cohort of staff.

4)      Circular No F39/1997:

Under this heading, the Respondent provided details in relation to a Circular letter dated 16 December 1997 and a letter issued on 12 August 1998, setting out details of the terms and conditions of secretaries employed under the 1978 scheme.

5)      Claim by the Trade Union in respect of school secretaries:

The Respondent’s submission, in this regard, detailed negotiations which took place between the Department and the registered Trade Union, which commenced in December 2015. These negotiations, which included conciliation at the WRC, concluded in with the upgrade of 46 secretaries to Grade IV in September 2018.

According to the Respondent submission, it was further agreed by the parties, at the time, that the Department would draft a new Circular in regard to the methodology and arrangements for future upgrades, which may replace Section 7 of Circular 39/97. Drafting of this new Circular would be conducted in line with the normal practice for drafting Circulars, which would include consultation with the Trade Union during the drafting process.

6)    Circular No 81/2020

The Respondent submitted that the new Circular (Education Circular 81/2020) was published on 21 December 2020.

In conclusion, the Respondent contends that changes to the upgrades were made in full consultation with all representative bodies, under the auspices of the WRC and were within the powers of the Minister.

It is further submitted that the terms and conditions of employees have not been made less favorable by the publication of Circular 81/2020. According to the Respondent, the amended Circular sets out, for example, updated DEPR pay rules which are more beneficial than the previous rules and allow staff access to a competitive process. It is submitted that the previous rule on an age-related paypoint is outdated and is not used.

The Respondent submitted that the Department is within its remit to engage in a conciliation process with a licensed Trade Union using the industrial relations machinery of the state to progress a legitimate claim. It is further submitted that the Department, as part of its consultation, engaged with Management Bodies who represent schools (the employers) and that they had an opportunity to review the Circular. In fact, it was submitted that the views of the employers were taken on board, such that, following queries raised with the Department through the Management Bodies, changes were made to clarify the Circular, following its publication.

In conclusion, it is submitted that Circular 81/2020 was published on the Department's website and was distributed to employers via the Management Bodies, in the normal manner.

With regard to the issues arising in relation to this complaint, the Complainant and the Respondent made written submission and also provided oral evidence at the Hearing. I have carefully considered and evaluated all of the evidence and submissions adduced in this regard in reaching my determinations as set out below.

Having carefully reviewed all of the evidence submitted in this case, I am satisfied that the Complainant's main claim is that, based on the number of whole time equivalent teachers, in the school in which she works, having reached 40, she is entitled to have her salary re-graded from that of Clerical Officer Grade III to Clerical Officer Grade IV, in line with the 1978 Clerical Officers’ scheme.

The matter at the core of the Complainant’s complaint is clearly an industrial relations issue. From the evidence submitted by the Respondent, it is clear that they consider this claim to have been dealt with, as a collective issue, in negotiations between the Department and the recognised Trade Union, which concluded in the publication of Education Circular 81/2020, in December 2020.

Notwithstanding the Complainant’s submission that she is not a member of the Trade Union involved in the negotiations and that she is not employed in the ETB sector, I am satisfied that the matter is still an industrial relations issue, which requires resolution through the various channels available to the Complainant for addressing such matters.

However, the Complainant has submitted her complaint to the WRC under the Terms of Employment Information Act 1994. Having clearly reviewed the 1994 Act, I am satisfied that there is nothing with the provisions of the Act which provides her with a means of addressing her grievance in relation to her salary grade.

Consequently, taking all of the above into consideration, I find that the Complainant’s claim in this regard is not well founded.

As an adjunct to her core complaint, the Complainant contends that there is an obligation on the Respondent to ensure that every clerical officer employed under the 1978 scheme is communicated with on an individual basis in relation to the terms and conditions of their employment and that their failure to do so on this occasion represents a breach of Section 5 of the 1994 Act.

I have carefully considered all of the evidence presented in relation to the progression of the issue, regarding the remuneration of the school secretaries, as it evolved from it being raised, in December 2015, by the registered Trade Union to the publication of Education Circular 81/2020 in December 2020. In addition, I have carefully considered the Respondent's submission regarding the established approach and practice in relation to the communication of such matters to the interested parties.

Based on that review, I am satisfied that the standard communication process is through the respective Trade Union to their members and through the various management bodies to the schools and other impacted or interested parties.

While I accept that in the within case, the Complainant may not have received formal communication of the changes agreed at national/collective level, there is no evidence to suggest that this failure was the responsibility of the Respondent. Consequently, I am satisfied that it would be unreasonable to hold the Respondent responsible for failures which occurred further down the communication chain.

Consequently, taking all of the above into consideration, I find that the Complainant’s claim that the Respondent is in breach of Section 5 of the 1994 Act is not well founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim under Section 7 of the Terms of Employment (Information) Act 1994 is not well founded and is, therefore, rejected.

Terms of Employment (Information) Act 1994