ADJUDICATION OFFICER Recommendation

on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00002182

Dispute:

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Date of Hearing:  17/05/2024

Procedure:

This dispute was referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 13 of the Industrial Relations Act 1969 on 30th January 2024.  There was no objection by the Employer to an Adjudication Officer investigating this dispute.  Following delegation to me by the Director General, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  This dispute was heard by remote hearing on 17th May 2024. The Worker was assisted by a Retired Employee of the County Council.  The Employer was represented by the Local Government Management Agency (LGMA) and a HR Representative was in attendance.  Comprehensive written submissions and supporting documentation was received from both Parties.  Details of the Worker’s alleged losses requested at the hearing were furnished on 9th August 2024.  Section 13(8) of the Act provides that hearings shall be held in private and accordingly, I direct that any information that might identify the Parties within this recommendation should not be published.

Background and Preliminary Objections:

This dispute arises in circumstances where the Worker was only given incremental credit for his service in the latter of two acting-up positions in his starting grade upon taking up a permanent position in the acting-up role.  This arose from a requirement in Circular 02/2010 that service started afresh with each acting-up period.  The Worker contends that the application of Circular 02/2010 in his case is unequitable and unfair and has led to a running loss of income currently at circa €12,849.  He sought a recommendation that he be retrospectively reinstated to the grade that he would have been on had there not been a break between his acting-up positions.  If granted, this would also entail back-payment of the difference in salary that he would have earned on the reinstated grade.

Although no objection to the WRC investigating this dispute had been indicated on behalf of the Employer, an objection to jurisdiction was raised at the hearing on a dual basis.  Firstly, it was contended that the Labour Court had already ruled on the same issue in Galway City Council -v- 5 Admin Grades, Recommendation LCR22485 dated 28th October 2021, recommending as follows:

“The matter before the Court concerns the application of a range of circulars to the process of establishing the starting pay on promotion of four persons who were appointed to permanent posts having acted up to higher positions for a number of years.  A fifth person referred to at the Court does not appear to have been appointed to a permanent post and consequently the specific matter referred to the Court does not appear to relate to him.

The Court is aware that the circulars whose application is in dispute are, effectively, nationally agreed between the employer side and trade unions representing workers in the sector.  The Court is also aware that the industrial relations arrangements in place between the parties in the sector includes a joint independently chaired national forum for engagement on national issues.

The Court understands that little engagement has taken place between the parties involved in this dispute for a period of two years prior to the referral of the matter to the Court in 2021.  It is the view of the Court that this delay has not been helpful to the resolution of the matter and has of course been a challenge to the parties and in particular to the individuals seeking a resolution of matters affecting them personally.

In all of the circumstances, the Court does not believe it would be appropriate to interpret a range of national circulars affecting workers and authorities across the sector nationally by way of making a definitive recommendation in this matter which affects four persons.

The Court therefore recommends that the matter of starting pay on promotion to a permanent post for persons in the position of the four persons before the Court should be placed on the agenda for the next meeting of the national forum.  If a resolution to the matter is found nationally that resolution should be applied in an agreed manner to the four persons before the Court in an agreed manner.

If appropriate, the matter outlined to the Court affecting a fifth person should similarly be placed on the agenda of the national forum.”

It was also confirmed that although the issue subject to this dispute had been aired at national forum level as recommended by the Labour Court, there had been no resolution to date and any outcome would not have retrospective effect as sought by the Worker herein.  It was further submitted that it was open to the Worker to pursue this matter through his Union at national level. 

Secondly, It was submitted that if the recommendation sought by this Worker was granted, it would impact upon the grading and consequent rates of pay of a body of workers within the meaning of Section 13(2) of the Act which provides 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.”

On behalf of the Worker, it was submitted that the instant dispute can be distinguished from the Labour Court dispute and position of the workers concerned as this Worker was particularly adversely affected.  It was not in issue that its recommendation related to the same Circular.  I deemed it necessary to hear the factual background and submissions to determine this issue. 

Summary of Worker’s Case:

The Worker commenced employment with the County Council (Employer) as a Temporary Resident Engineer on 31st July 2006.  Following an application and interview process, he was appointed as a permanent Executive Engineer on 23rd July 2008 and placed on point 3 of the Executive Engineer (EE) pay scale.  The Worker applied for and was appointed as Acting Senior Executive Engineer from 1st July 2013 for the purpose of providing cover whilst the office-holder was assigned to another Office.  This role entailed an increase in his duties and responsibilities including management of staff.  It also attracted a higher salary and he was placed on point 1 of the Senior Executive Engineer (SEE) pay scale in accordance with the starting pay provisions in Circular 05/67.  Effectively Circular 05/67 ensures that an employee enters an acting-up position at least one point higher than their pre-existing salary and receives accrued increments in their pre-existing role upon reversion.  The Worker received one-point annual increments throughout this acting-up period.  His temporary position as a Senior Executive Engineer ceased on 19th March 2017 when the office-holder returned.  This acting-up period was just short of four years long, leaving him on point 4 of the SEE pay scale.  He reverted back to his substantive post and to his original salary on the lower EE pay scale.

On 2nd May 2017, the Worker applied for and was appointed to a different Acting Senior Executive Engineer post to provide cover pending the permanent filling of the vacancy following the retirement of the substantive office-holder.  The Worker was placed back on the SEE pay scale on point 2, being the next point up from his pre-existing salary on the EE pay scale.  This had also led to a consequent reduction in his salary from when he had left the same role six weeks previously.

The Worker was appointed as a permanent Senior Executive Engineer on 9th October 2023.  He was only given incremental credit for his second acting-up period in his starting grade.  The Retired Employee wrote to the Employer on his behalf requesting revision to the grade that he would have been on had his service for both acting-up periods been combined (totalling ten years) and his salary retrospectively revised.  Following a review, he was retrospectively placed on point 3 of the SEE scale from 2nd May 2017 but this still left him a point short of the grade that he would have been on.  He was advised that his first period of acting-up was not cognisable in determining incremental credit for his permanent appointment in accordance with Circular 02/2010.  Under the heading: ‘Revised arrangements for the calculation of Acting Up allowances and Incremental credit on promotion’, paragraph 6 states: “There will be no accumulation of acting service; the amount of acting allowance will be calculated afresh in accordance with paragraph 1-5 for each new period of acting."

It was submitted that the six-week break in the Worker’s ten-year period of acting-up had the consequence that he did not get full recognition for this service equating to a one-point reduction.  Had there been no such break, he would currently be on point 7 of the SEE and the 3rd point of the first long-service increment earning circa €91k per annum instead of €88k.  His running loss of earnings was confirmed as circa €12,849.  It was contended that paragraph 6 in Circular 02/2010 should not apply as long periods of acting-up had not been envisaged at the time of drafting and the Employer had not abided by a requirement to keep acting-up periods to a minimum.  Specifically, paragraph 2 provides: “In general every effort should be made to keep the practice of temporary assignment to higher duties to a minimum.”  It was argued that it was not open to the Employer to disregard paragraph 2 whilst applying paragraph 6 and thus the application of the Circular in the instant case was unfair and inequitable.  A dispute was referred to the WRC on 30th January 2024. 

Summary of Employer’s Case:

The Employer’s Representative outlined the history in relation to the Circulars referred to above.  Circular 02/2010 arose in resolution to a claim submitted by two Unions seeking parity in the Local Government sector to the application of provisions in the Civil Service.  Both Unions involved had accepted the terms of Circular 02/2010 at the time.  The purpose of Circular 02/2010 was to afford incremental credit for the period of service within an acting-up position to which an employee was subsequently appointed.  However, paragraph 6 of Circular 02/2010 clearly states that there can be no accumulation of acting-up service: “There will be no accumulation of acting service; the amount of the acting allowance will be calculated afresh in accordance with paragraphs 1-5 for each new period of acting.”  The Employer has adhered to the terms of Circular 02/2010 and has no discretion to do otherwise.  The oversight Department was also consulted and confirmed that this was correct.  The recommendation sought herein appears to require the provisions of Circular 02/2010 to be disregarded or changed.  This is not feasible on a unilateral basis within the Local Authority sector.

Findings and Conclusions:

I have carefully listened to and considered the factual background and submissions on behalf of both Parties to this dispute in light of the preliminary objections and recommendation of the Labour Court in LCR22485.  Although the specific details of that dispute were not outlined, it clearly involved the same issue as the instant case and also related to Circular 02/2010.  The Labour Court expressed the view that “the Court does not believe it would be appropriate to interpret a range of national circulars affecting workers and authorities across the sector nationally by way of making a definitive recommendation in this matter which affects four persons”.  It recommended that the matter of starting pay on promotion to a permanent post for employees in the position of those concerned in that dispute should be placed on the agenda for the next meeting of the national forum.  

In the instant dispute, this Adjudication Officer is being asked to disregard or interpret paragraph 6 of Circular 02/2010 in such a way as to bridge a gap between two acting-up periods of service where the wording is unequivocal: “There will be no accumulation of acting service; the amount of the acting allowance will be calculated afresh in accordance with paragraphs 1-5 for each new period of acting.”  It is noted that such Circulars are nationally agreed and may have legal effect.  Whilst I have sympathy with the Worker’s position, I do not deem it appropriate to apply an interpretation to Circular 02/2010 that is not in keeping with its plain and undisputed wording.  I therefore adopt a similar stance to the Labour Court and consider that any necessary amendments to any Circulars required to give incremental credit for accumulated acting-up periods of service would be best addressed at national / forum level.  Regrettably, it appears that little progress in determining this particular issue has been made since 2021.  It is acknowledged that it is not always possible to limit acting-up to short-term periods within the public service for a host of reasons.  Given that this practice is unlikely to cease in the short-term this issue remains live, and it would be in all parties’ interests to address it definitively in a timely and conclusive manner at national level.  It follows that the issue of jurisdiction under Section 13(2) of the Industrial Relations Act 1969 does not arise. 

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  For the aforesaid reasons, I cannot accede to the recommendation sought herein.

Dated:   09-09-24

Workplace Relations Commission Adjudication Officer:  Aideen Collard