Worker

Employer

Anonymised Parties

Worker

Employer

Representatives

Sheehy Solicitors

No appearance by, or on behalf of, the Employer at the hearing

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 - 00002904

25/07/2024

The Worker contends that the Employer has unfairly applied its staff transfer policy to him. Rather than select applicants for a transfer panel based on permanency, increments and length of service, applicants are selected based on length of service alone which means that students on temporary contracts who trained with the Employer are preferred over the Complainant who is permanent and more senior.

The Worker joined the Employer organisation on 20 September 2021 on a permanent contract.  Previously, he worked with in a similar organisation in the UK. Prior to that, he worked with the Employer in another role. 

When the Worker joined the Employer organisation, he was advised that his previous service with the Employer was reckonable for pension purposes but not for salary increments. Conversely, the Worker’s period of service in the UK was reckonable for salary increments but not for pension purposes.    

Although the Worker previously raised a grievance with the Employer about the inconsistent application of rules regarding his pay and increments, he asserts that this dispute is not a dispute concerning rates of pay, hours of work, times of work or annual holidays for a group of workers.  Instead, the Worker submits that a policy agreed under a collective agreement is not being fairly applied to him.

The Worker submits that there are two elements to this dispute:

·       Failure to properly apply the staff transfer policy to him; and

·       Failure to have regard to his previous employment with the Employer organisation contrary to the Employer’s policy. 

Failure to properly apply policy criteria

The purpose of the staff transfer policy is to provide a mechanism for eligible staff to apply for a transfer to a working location of their choice. It applies to all grades of permanent staff and to all permanent vacancies that become available for filling on a permanent basis.  The Worker submits that the Employer has unfairly applied this policy in relation to him. 

The Worker submits that rather than select applicants for the transfer panel based on permanency, increments and length of service, the Employer’s selection is based on length of service alone which means that students who trained with the Employer organisation and who are junior to the Worker and on a lower increment, have preference over the Worker even though they do not have permanent contracts.  The Worker asserts that his application to the staff transfer panel was not assessed under the appropriate criteria effective on the date of his application but was considered under a policy provision that had not yet commenced. 

The Worker raised an internal grievance with the Employer.  The Employer asserted that the Worker’s grievance related to a collective issue and did not decide on the matter.

The law 

The Worker accepts that collective agreements and matters relating to pay, hours or times of work or annual holidays impacting a body of workers cannot be determined by the WRC under section 13(2) of the Industrial Relations Act 1969. The Worker submits, however, that this dispute is not a collective issue – it is only the Worker who is affected.

The Worker submits that his issues are about the proper implementation and application to him of a policy agreed between the trade unions and his employer. He finds himself in the position whereby neither his union nor his employer are able or willing to assist him because they assert that this matter concerns a collective agreement. 

The Worker accepts that the staff transfer policy emerged from a collective agreement.  The Worker’s issue, however, is how the policy is being applied to his unique circumstance.  The Worker asserts that it does not impact a body of workers, and it does not require changes to the policy.  Instead, it simply requires fairness of application of the policies that were in force at the appropriate time.  The Worker submits the Employer failed to comply with the terms of its own procedures to his detriment. 

The Employer did not attend the adjudication hearing.

In advance of the hearing, the Employer wrote the WRC to advise that that it would not be attending the scheduled hearing.  

In it correspondence to the WRC, the Employer wrote that the Worker’s dispute related specifically to criteria within a long-standing collectively agreed policy and that matters of a collective nature are channelled through a collective process made up of union representatives and management. The Employer asserted that, by bringing this complaint before the WRC, the Worker was seeking to undermine the collectively agreed policy, with the potential to impact a body of workers. 

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

At the hearing the Worker confirmed that he was a member of a trade union but that his trade union representative had declined to represent him at the hearing on the grounds that his dispute was collective in nature.  The Worker also confirmed that he had recently been transferred to his requested work location.

In correspondence to the WRC, copied to the Worker, the Employer indicated that it would not be attending the hearing as it related to a collective matter and was, therefore, outside the remit of the WRC in accordance section 13 of the Industrial Relations Act 1969, as amended (the “Act”).

Section 13(2) of the Industrial Relations Act 1969 places a statutory restriction on Adjudication Officers from investigating disputes connected with rates of pay, hours or times of work or annual holidays of a body of workers as follows:

“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 a rights commissioner.”

The Worker clearly feels very aggrieved about the way the Employer’s transfer policy has been applied to him.  He contends that this dispute relates solely to the application of the Employer’s transfer policy to him and does not have collective implications and is, therefore, not precluded from investigation by the WRC under section 13 of the Act. 

It is clear, however, that both the Employer and the Worker’s union representative view this as a collective dispute which applies to a body of workers.

In investigating the dispute, I am mindful of the recommendation of the Labour Court in Department of Enterprise, Trade, and Employment and 31 External Adjudication Officers LCR23031 where the Court stated as follows:

“The Court recognises that any employer is, in our voluntarist industrial relations framework, free to participate or not participate in hearings of the Court convened to investigate a trade dispute. It is, however, an underpinning reality of the State’s institutional framework that the operation of our voluntarist system, enshrined as it is in the governing legislation since 1946, relies upon parties who value the orderly resolution of industrial relations trade disputes demonstrating respect for the institutions of the state by participating in the procedures employed by those institutions. Successive Governments and Ministers since 1946 have consistently re-iterated this reality, and in doing so have publicly endorsed the proposition that disputing parties should engage with the institutions of the State to assist in the resolution of trade disputes.

…

It need hardly be stated that, at minimum, the failure of the alleged employer in this alleged trade dispute to attend the hearing of the Court has deprived the Court of the opportunity to fully comprehend the position of that party in relation to the matters in dispute. This lack of engagement is particularly problematic when the statutory obligation resting upon the Court is to issue a Recommendation regardless of whether the alleged employer participates in the hearing or not.”

The Employer’s non-attendance at the hearing deprived me of the opportunity to explore its perspective on the dispute.  This leaves me with an incomplete understanding of the collective implications of the dispute.

It is well settled that WRC Adjudication Officers do not interpret collective agreements. Without the Employer’s input, I do not have sufficient information to determine if this dispute is a collective dispute as asserted by the Employer and the Worker’s trade union representative or if the Worker is correct in his contention that it applies solely to him. 

Having given careful consideration to all the relevant submissions in this case, I do not recommend in favour of the Worker.

Collective issue