Worker

Employer

Anonymised Parties

A Worker

A Heath Service Provider

Representatives

Padraig Mulligan Forsa Trade Union

 Damian Mullarkey

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000771

17/10/2022

The Worker was hired by agency in 2016 to perform a finance role for the Employer. Via the agency the Worker was paid an enhanced salary, that is in excess of point 1 of the salary scale set by the Employer and relevant unions. The Worker’s case is that she was paid at point 7 of this scale.

In 2021 the Worker was successful in applying for the role she performed on a permanent basis employed directly by the Employer. When calculating her salary in the permanent role the Employer recognised her entitlement to incremental credit based on the years she had already spent on that role. However, they calculated that entitlement from point 1 beginning when she first began working for the agency and as such her starting salary in her new role was point 6 rather than point 7 which she was being paid at. This resulted in an ongoing loss to her of €7546 at the date of the hearing.

The Worker’s Union argue that the issue arises from the Employer’s failure to recognise the market rate for a role. Rather than seeking to address their own inadequate pay scales they sought to avoid the issue by relying on an outside agency who employed the Worker at the market rate and then charged fees to the Employer.

The Union points to a similar case within the Employer, though in a different region. This concerned another worker who was also first employed via an agency due to labour market pressures and then subsequently became a direct employee. This employee argued successfully that he was entitled to move to the next point of the increment scale from his salary as an agency worker, rather than have his salary calculated the same way the Worker in this case has.

The Union has provided the grievance documentation from this process which includes a clear position outlined by the employer’s national HR team and that this was the proper way to calculate that worker’s salary and to fail to do so would risk a breach of his rights under the Protection of Employees (Temporary Agency Work) Act 2012.   

The Worker has exhausted the internal grievance procedures in pursuing her claim.

The Worker was placed with the Employer by the agency in May 2016. It was not until November 2021 that she entered into a contractual relationship with the Employer. She accepted a contract of indefinite duration as a Senior Executive Officer. The date of appointment was the 1st of November 2021. The Worker was not deemed a new entrant but was given incremental credit for her previous 5.5 years.

The Worker is trying to advance a claim which is fundamentally unsuitable to these acts. They seek to require the Employer to reformulate their circulars on incremental credit to reflect the Worker’s previous agency rate. This was something which the Employer had no say in. This is a collective matter which would see pay progression changed for not just the Complainant but a wider cohort of staff.

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

Firstly I agree with the Respondent that there is a limitation on my jurisdiction to hear collective disputes. Section 13 is clear that a dispute can be referred to the WRC Adjudication service: 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…

However, Section 13 goes on to state that: (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—

As such, unless this matter is connected with rates of pay of a body of workers, I have a statutory duty to consider it.

No wider body of workers pursuing a claim which would be affected by my issuing a recommendation has been identified to me by the Employer. As far as I can tell this case concerns a dispute about whether existing policies and agreements were properly applied to this particular Worker. The only other worker identified is the worker the Union has brought to my attention in arguing this Worker should be treated the same way.

Calculating Incremental Credit

The Employer has citied their circular on incremental credit. This arose from an agreement with the Worker’s Union. On review of this document, I can see that the circular does not envisage the scenario that the Worker is in, that is where a person begins their service at a point higher than point one of the scale because they were hired by an outside agency.

Comparable Colleague’s Dispute

The Union referred to another colleague who had been employed in a similar situation to the Worker. This matter was ultimately decided by the Employers Deputy Director of Human Resources and the General Manager overseeing that worker.

In that case the Employer decided to recognise the point of the scale that other worker had been on as an agency staff member and to allow their incremental credit to carry on from there. The Employer, when considering that other case, set out a very different view to how they have treated the Worker in this dispute. Namely, they took the view that the above circular was not what was relevant. They accepted that that worker had been employed by an agency and paid at a higher point of the scale due to labour market realities. They would consider it less favourable treatment to reduce his pay from his agency rate when he became permanent and that this would be in violation of the agency workers protection act. As such they allowed that worker to carry on to working for the Employer at the same rate of pay and progress up the scale from there.

Conclusion

I agree with the Employer that I have no jurisdiction to set out a general entitlement for former agency worker pay to be calculated in a certain manner. The Worker has not asked me to do this. They have only asked to be treated in a manner consistent with how the Employer has previously determined these issues.  At no time has the Employer explained why they have chosen to treat the Worker differently from their colleague, whose identical claim was accepted. Not only that but the underlying logic of that claim was endorsed by the Employer in a written decision.

I also do not accept that the Employer had no hand in setting the Worker’s agency rate. It is likely that this would have had to have been approved by the Employer as they paid for the Worker’s employment via the agency, just as they pay her directly now.

The Worker is entitled to some consistency and fairness from their Employer when these matters are determined. I recommend that they be treated as their colleague was and that they have their incremental credit carry on from the point they were on before they took up their permanent post on the 1st of November 2021, that is point 7 of the scale.