Worker

Employer

Anonymised Parties

A retail worker

A retail supermarket

Representatives

Martina Weir, SIPTU

Niamh Ní Cheallaigh, IBEC

Act

Dispute Reference No.

Date of Receipt

Dispute referred to the Workplace Relations Commission pursuant to section 13 of the Industrial Relations Act, 1969

CA-00046952-001

03/11/2021

The worker outlined that this dispute related to the pay increase he received in 2019 and 2020. He had raised a grievance and the employer did not uphold his grievance. In 2019 and 2020, he received the equivalent of the 2% pay increase by way of a lump-sum rather than the corresponding increase in his pay. The worker relied on his 2003 agreement with the employer, which provided that he would be paid percentage increases in line with collective agreements. He said that proposals prepared by the WRC in respect of a collective process were not applicable to him as the unions had not accepted the proposals. The worker has lost out as the increases were not reflected in his rate of pay and would not be reckonable for pension purposes. He was entitled to the full benefit of the 2019 and 2020 pay increases. The employer increased his pay rather than paying him a lump sum in 2021 and thereafter.

The employer outlined that this dispute related to the rate of pay of a body of workers and therefore precluded by section 13. A recommendation should also not issue because the dispute was previously subject to a recommendation of the Labour Court. This was a collective issue that had wide-ranging ramifications across the workforce. Some 180 colleagues would be affected in different ways. The pay increases were made as a gesture of good will, in line with the recommendations of the Labour Court. It outlined that in 2019 and 2020, increases of 2% were made to the historical pay rate of pre-1997 staff. For those pre-1997 staff whose wage was already above the historical pay rate, the increase was paid by way of a lump sum (as occurred with the worker).

The worker commenced employment with the respondent in 1987 and remains in employment. This dispute relates to the manner in which he received a pay increase in 2019 and 2020. This was by way of a lump-sum rather than year-on-year increases in his pay (with pension consequences).

2003 agreement

At the centre of this dispute is the interpretation and application of the 2003 agreement. This was the agreement of the 14th November 2003 between the worker and a named employee relations manager. It provides for the consolidation of the worker’s pay. It provides that the worker’s ‘salary will attract the normal SP [Social Partnership] and collectively agreed pay increases’. It further provides that the worker’s ‘salary is red-circled and applies to you alone and is made in the strictest confidence without practice, precedent or prejudice.’ The worker was paid a lump sum in consideration for the consolidation agreement.

Issues of jurisdiction

Section 13(1) of the Industrial Relations Act provides “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 workers) 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 [an adjudication officer].”

It is clear from the above definition that a claim in respect of rates of pay, the hours or times of work or annual holidays of a body of workers is not within the scope of section 13. It is clear that a dispute in respect of the rates of pay, the hours or times of work of a single worker is within the scope of section 13. It is also clear that other types of dispute are within the scope of section 13, even if they affect more than one worker. In fact, the above definition explicitly refers to a party (singular) being able to refer a dispute where a trade dispute involves ‘workers’ (plural).

The within dispute relates to the worker’s entitlement to pay, in particular with regard to how a pay increase was affected in 2019 and 2020. He relies on the 2003 agreement which is unique to him. The employer refers to ramifications for other employees but has not shown how this constitutes a body of workers. For example, were the worker able to succeed in the claim per his individual agreement, the fact that others had similar individual agreements does not mean that they constitute a ‘body of workers’. Rather, they are individual employees asserting individually negotiated and agreed rights. The fact of there being others with individual agreements does not mean that together they constitute a body of workers. Of course, had the 2003 agreement been a collective agreement, it would fall outside the scope of section 13 in so far as it related to the rate of pay of this body of workers.

The second jurisdiction issue raised is whether section 13(3)(b) applies, i.e. the Labour Court has already made a recommendation ‘in relation to the dispute’. The two recommendations in question in this case were made pursuant to section 26(1) of the Industrial Relations Act, 1990 and followed [protracted] conciliation at the Workplace Relations Commission involving trade unions and the employer. Neither recommendation relates to the worker or the within dispute, so they were not recommendations ‘in relation to the dispute’ as required by section 13(3)(b).

It follows that I have jurisdiction to make a recommendation on the merits of the dispute per section 13(3)(a) of the Industrial Relations Act. The dispute relates to an individual’s pay as opposed to the rate of pay of a body of workers, even were it to have wider ramifications. The dispute was not subject to a Labour Court recommendation directly encompassing the worker’s claim.

Substantive consideration

I appreciate why the worker wished that the 2019 and 2020 pay increases be made via year-on-year reckonable increases in pay, rather than the payment of a lump-sum. The employer has explained why it made these lump-sum payments to the worker as a pre-1997 employee on a rate of pay higher than the prevailing historical pay rate.

The question is whether the worker can rely on his 2003 agreement and in particular the words that his ‘salary will attract the normal SP [Social Partnership] and collectively agreed pay increases’. Having considered the parties’ submissions, I find that this clause did not require the employer pay the 2019 and 2020 increases as year-on-year increases. The employer was entitled to implement the pay increases to the worker by way of a lump-sum. The clause from the 2003 agreement did not apply to the 2019 and 2020 pay increases as they were not collectively agreed pay increases. Rather they were pay increases introduced by the employer following the end of a particular industrial relations process in 2016. The pay increases were not collectively agreed and therefore not within scope of the 2003 agreement.

It follows that I cannot recommend concession of the worker’s claim.

CA-00046952-001

For the reasons set out above, I do not recommend concession of the worker’s claim.

Industrial Relations Act / section 13 / body of workers / individual agreement