ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00001254

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Dates of Hearing:  25/09/2023, 09/02/2024 & 07/06/2024

Procedure:

This dispute was referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 13 of the Industrial Relations Act 1969 on 7th April 2023.  There was no objection by the Employer to the WRC investigating this dispute.  The Worker was represented by FORSA and the Employer was represented by IBEC.  Comprehensive submissions (which were updated), documentation and caselaw was received from both Parties.  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 at Lansdowne House over three dates with senior management in attendance and adjourned to facilitate a potential resolution.  The Body who fund the Worker’s role, ‘A Public Healthcare Body’ was also invited to attend but declined. A further period of time was allowed for the Complainant to refer a dispute against that Body.  As this is not being progressed and in the absence of a resolution to date, a Recommendation is required.  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and accordingly, I direct that any information that might identify the Parties within this Recommendation should not be published.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:

This dispute arises in circumstances where the Worker is employed by a Charity and was seconded to work as an Aftercare Worker for a Public Healthcare Body who also fund his role with the Employer.  For a four-year period, the Worker has remained on a lower pay scale than employees undertaking the same role but who are direct employees of the Public Healthcare Body.  The Worker seeks pay parity and retrospection of pay from the date of commencement.  The Employer contends that it cannot make up the shortfall from its own funds in the absence of consent from the Public Healthcare Body and various governance restrictions.

Summary of Worker’s Case:

With ten years of prior service within the public sector, on 12th May 2003, the Worker commenced employment with a registered Charity (the Employer herein) who provide a range of support services to a vulnerable group.  He had retained his public sector terms and conditions including superannuation.  The Worker’s role with the Charity is funded by the Public Healthcare Body.  On 6th January 2020, the Worker commenced working directly for the Public Healthcare Body as an Aftercare Worker whilst remaining an employee of the Charity who pay his wages.  This role entails working with vulnerable young people who have left residential care and liaising with them in relation to their housing, education and mental health needs.  It is common case that the Worker put himself forward for this role to avoid a cut in funding to the Charity by the Public Healthcare Body.  It is not in issue that this role equates to that of a Social Care Leader on the Public Healthcare Body’s pay scale.  However, the Worker is being paid on the Charity’s Social Care Worker scale whilst employees performing the same role but directly employed by the Public Healthcare Body are paid on the higher Public Healthcare Body’s Social Care Leader scale.  As of the date of the first hearing, the Worker was on a salary of €51,941 on the Social Care Worker scale whilst his counterparts on the Social Care Leader scale are on €60,336, giving rise to a significant disparity of circa €8,395 per annum.  It was contended that the Worker is the only employee of the Charity currently in this position.  It was further contended that the Charity had other sources of unrestricted funding to meet this shortfall.  It was submitted that there was precedent for the Charity making similar payments.  It is not accepted that various governance restrictions prevent such payments.  The Worker is seeking re-grading to the Social Care Leader scale by his Employer with full retrospection of his remuneration since 6th January 2020. 

Summary of Employer’s Case:

In written submissions, it was submitted on behalf of the Charity that if the Recommendation sought was granted, it would adversely impact upon the grading and consequent rates of pay of a body of workers within the meaning of Section 13(2) of the Act providing: “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.”  However, the Charity was open to engaging with a view to finding a resolution that did not infringe upon this provision.  It was also subsequently submitted that the Complainant had not availed of the internal grievance procedures. 

The Charity’s functions and the Worker’s history of employment and transfer to work directly for the Public Healthcare Body as an Aftercare Worker from 6th January 2020 were outlined as set out above.  Arising from internal restructuring, Aftercare Workers employed directly by the Public Healthcare Body were placed on its Social Care Leader scale leading to a disparity in pay with that of the Worker.  There was no provision for commensurate funding to the Charity to increase his wages on a par with its directly employed Aftercare Workers.  The Worker continues to be paid in accordance with the terms of his contract with the Charity.  His role with the Charity is funded by the Public Healthcare Body under a Service Level Agreement (SLA) negotiated at quarterly meetings and confirmed in writing.  The Worker is also subject to complex pre-existing public pay and superannuation agreements with the Public Healthcare Body.  Thus, any change to the description of his role or remuneration requires its explicit authorisation.

As set out in correspondence submitted, the Charity has repeatedly raised the issue of pay parity with the Public Healthcare Body.  On all occasions, it has been advised by the Public Healthcare Body that this is an issue facing voluntary sector employees nationwide, and it is not currently in a position to fund the shortfall.  Owing to its SLA with the Public Healthcare Body and other governance restrictions on its cash reserves, the Charity does not have the autonomy to increase the Worker’s salary on a par with his directly employed counterparts.  The Charity also has concerns that any such top-up would adversely affect the Worker’s pension under the publicly agreed superannuation arrangements.  The Charity is further concerned as to the impact of a Recommendation in the terms sought on the voluntary sector and/or the sanctioning of its funds and urges against the granting of same.  Reliance was placed on Recommendations of the Labour Court desisting from intervening in similar pay disputes.  The Charity continues to advocate for its employees and is a founding member of an Association campaigning to have pay rates addressed. 

All of the hearings were attended by the CEO who was most concerned at the Worker’s predicament and finding a satisfactory resolution.  He confirmed that the Worker is a valued employee with an impeccable work history, and his preference is that he remain an employee.  He detailed the various governance and other restrictions preventing top-up of the Worker’s pay by the Charity.  He submitted that if the Charity had been in a position to discharge the shortfall from its own funds, it would have done so already.  Both Parties were of the view that it was probably not open to the Worker to revert to direct work with the Charity without risking the funding for his role by the Public Healthcare Body.  This matter was adjourned to enable the Charity to engage with the Public Healthcare Body with a view to securing or offsetting funding to make up the shortfall in the Worker’s pay.  Other potential solutions including transfer of the Worker’s employment without loss of service or terms and conditions to the Public Healthcare Body were mooted.  However, for various external reasons, it has not been possible to reach a resolution of this dispute to date.

Findings and Conclusions:

I have carefully considered the factual background and submissions on behalf of both Parties to this dispute.  The Worker is a valued employee who finds himself in an invidious position of having to undertake the role of an Aftercare Worker for a Public Healthcare Body at circa €8,395 less per annum than his directly employed counterparts.  This equates to a shortfall in wages of circa €33,580 to date.  I accept the bone fides of the Charity in relation to the various restrictions cited which prevent funding the shortfall in his pay directly from its own funds.  I also acknowledge the challenges faced by the Public Healthcare Body in relation to the distribution of scarce resources.  I am mindful of the approach taken by the Labour Court when dealing with similar disputes as set out in the caselaw submitted.  Given the various restrictions imposed on the Charity underpinned by complex pre-existing public pay and superannuation agreements, I do not consider it appropriate to make a Recommendation in the terms sought at this juncture.  However, all endeavours should be made to recognise and compensate this Worker (who provides an invaluable service to society) on a par with his counterparts directly employed by the Public Healthcare Body.

Recommendation pertaining solely to this Worker:

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.  However, I recommend that the Charity makes concerted efforts to engage with the Public Healthcare Body to find a mechanism for bringing the Worker’s pay on a par with that of his directly employed counterparts to include retrospective re-grading and pay.  In the absence of a satisfactory resolution within three months of the date hereof, the Worker is invited to refer this dispute back to the WRC against either the Charity and/or the Public Healthcare Body for further consideration.  I am not retaining seisin of this matter.

Dated:   10th February 2025

Workplace Relations Commission Adjudication Officer:  Aideen Collard