Worker

Employer

Anonymised Parties

A worker

An employer

Representatives

Shonagh Byrne SIPTU

 Employer management.

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 - 00046516

04/10/2021

This complaint was received by the Workplace Relations Commission on 4th October 2021.

In complaints received under section 13 of the Industrial Relations Act, 1969 the Complainant is referred to as the Worker and the Respondent is referred to as the Employer.

The Worker has been employed as a Patrol Ganger with the employer since 1994. The Worker is located at Balbriggan as Mobile Ganger on days. He operates on a 39-hour week.

Patrol gangers maintain the tracks on behalf of the employer mainly by walking along the tracks and inspecting them.

The Worker is a senior person on days and therefore would be acting up in any higher duty arrangements such as Mobile Ganger.

The Worker maintains that he has been acting in excess of 8 years in the role of mobile ganger. The current mobile ganger was mainly on night shift. Therefore, there would be a requirement to put in a mobile ganger on day work.

 In 2017 an agreement was reached between the Trade Unions and the Respondent regarding upgrading of persons acting up continuously for more than 4 years in a vacant position.

The agreement provides for any employees acting up in a position continuously for 4 years or more at the date of the agreement will be granted the higher position on a permanent basis provided that the following stipulations are met and they are listed in the agreement of 25th September 2017 as follows:

a)       Must have been acting up in an established vacancy

b)      Must be cost neutral to the company- must not give rise to any additional costs that would normally arise

a)      No backfilling of any consequent vacancies unless a clear business case exists

The Worker maintains that, at the commencement of his acting up the person who vacated the Mobile Ganger position had left the Division and had carried out duties outside of the Division.

The individual concerned was away from the Division for 4 years and did not return to the division and accepted voluntary redundancy and left the company.

As the individual did not return to the Division 5, this resulted in a vacancy of Mobile Ganger for the required number of years as per the 2017 Agreement and the Worker maintains that he has been acting as Mobile Ganger in Division 5 for the required period and continues to act in the position today.

The Worker’s acting up issue was raised by local SIPTU Representatives with the Infrastructure Manager during a local industrial relations meeting in June 2019.

SIPTU Representative was told that the vacancy would be advertised and filled and that the issue could be raised with SIPTU.

Following discussions, a date was set in the WRC regarding the interpretation of the WRC document which was drawn up in 2017.

In March 2020 SIPTU and local representatives attended the WRC for a hearing. The employer representatives would not attend due to the Worker not being available due to annual leave. (The Worker had agreed that SIPTU Reps could act on his behalf) Mediation also took place in the WRC with the company in May 2021 and no agreement was reached.

The employer advertised the vacant mobile ganger position in the Division. SIPTU wrote to the respondent on 27th July 2020 asking them to hold off on the appointment of a person to the Mobile Ganger position in Division 5 until the internal dispute’s tribunal was exhausted. However, the Respondent went ahead and filled the position on nights.

It is important to note that the person appointed to the position is currently working as Mobile Ganger in Dunleer and has not taken the position in Balbriggan and the vacancy remains unfilled.

It is also important to note that in a separate similar case a member of staff had been acting up in a position which had not been vacant for four years and under the WRC agreement this individual was appointed two years after the position became vacant. The individual was acting up for six years, but the appointed member of staff was still appointed to the position but not carrying out the duties and subsequently took VS in 2016.

The Worker’s position

The Company / Union Agreement allows for people who are acting up in a higher position for four or more years to be appointed on a permanent basis to that position.

The Worker maintains that he has been acting as Mobile Ganger on days for over 4 years, in fact for 8 years.

The Worker is seeking to be appointed to the position of Mobile Ganger on a permanent basis, as per the 2017 Agreement. The other individual who held the position has been out of the Division for over 4 years and has left the company.

We respectfully request that you recommend in our members favour that he be appointed to Mobile Ganger post on a permanent basis.

There are currently discussions between the Trade Unions and the Company regarding interpretation of the wording of the 2017 Agreement regarding when the 4 years for a vacancy would commence and it is hoped that this will be resolved between the parties shortly.

Background:

1.      The Worker regularly receives payment of a Mobile Ganger rate when required to supervise a group of staff working on the day shift. This is a requirement when the appointed Mobile Ganger is working on a different site or shift. This is common practice in many of the Divisions in the Permanent Way. However, the Worker is claiming that he should be appointed to the grade of Mobile Ganger based on the amount of time that he has been continuously acting up to the grade.

2.      The employer position is that there is no entitlement to an appointment in this case and that this relates to a Workplace Relations Commission (WRC) Conciliation Conference proposal issued on 25th September 2017.

WRC Conciliation Proposal 2017:

3.      The relevant sections of the Conciliation Proposal state the following:

1.      These proposals are intended to apply to all collectively represented grades at xxxx (name redacted) subject to acceptance of all concerned

2.      Any employee who has been acting-up in a higher grade position continuously for four years or more at the date of agreement will be granted the higher position on a permanent basis provided the following stipulations are met:

a.      must have been acting-up in an established vacancy;

b.      must be cost-neutral to the employer, i.e. must not give rise to any additional payroll costs other than would ordinarily arise;

c.       no backfilling of any consequential vacancies unless a clear business case exists.

4.      The above WRC proposal was accepted by all parties. It is the employer position that the above criteria do not apply in The Worker’s case. The Worker has been in receipt of a payment for carrying out the function of Mobile Ganger and has not been “acting-up in an established vacancy”. Furthermore, if he was appointed it would not be “cost-neutral” to the employer.

Mobile Gangers

1.      There was no “established vacancy” for a Mobile Ganger in Balbriggan until March 2019 when Mr. HM retired. Mr. HM had been temporarily working in another location prior to retiring. During this time Mr. EM acted-up into his position. The above criteria did not apply in Mr EM’s case either and, as a result, the employer was required to run a recruitment process to fill the role.

2.      In all Divisions of the Permanent Way there are appointed Mobile Gangers. However, in circumstances where the planned work involves multiple work locations (predominantly due to there being both day shifts and night shifts) some Patrol Gangers are paid the Mobile Ganger rate for supervising a group of staff when there is no appointed Mobile Ganger available. This is common practice in the Permanent Way and the Trade Unions are fully aware of this.

3.      The WRC proposal was worded carefully to clearly specify that staff should only be appointed when they had been “acting-up in an established vacancy” for a period of four or more years.

4.      In March 2022 the Trade Unions requested that the employer consider revising the acting-up agreement as they feel that there are some employees acting-up for long periods that the agreement does not cover.

5.      The employer has agreed to look into this but no agreement has yet been reached. This is being done in the context of collective bargaining under the employer’s Framework for Negotiation and Dispute resolution. The employer cannot appoint an individual employee in a manner that is outside of the agreed criteria of the 2017 WRC agreement.

Summary

1.      The Worker has been paid the Mobile Ganger rate when fulfilling that function and has not been “acting-up in an established vacancy”. Therefore, the agreed proposal for appointment of staff in these circumstances clearly does not apply.

2.      Were the Adjudication Officer to make any concession to The Worker in this case it would be inconsistent with the WRC proposal of 2017, the terms of which have been applied consistently (and in numerous cases) since it was accepted by all parties. Furthermore, any concession in this case would potentially lead to multiple claims from other employees.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

As a preliminary point the employer’s representative raised the subject of an internal dispute mechanism that he felt was the more appropriate mechanism for dealing with such a dispute such as the instant one.

The Worker was uncertain as to which mechanism should be utilised. He had submitted his complaint to the WRC on 4th October 2021, at that point the internal dispute mechanism had not commenced, this mechanism only commenced in December 2021.

I recommend that the instant dispute should be presented at the next meeting of the internal body for recommendation.

I would ask that the Worker agree to this recommendation and that the employer will endeavour to have this dispute heard at the next meeting of the internal group that I believe is planned for late May 2022.

This is my recommendation.