INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
DUN LAOGHAIRE INSTITUTE OF ART, DESIGN & TECHNOLOGY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Appeal Against Rights Commissioner's recommendation IR544/99/CW concerning the application of allowances.
2. The worker concerned was appointed to the position of Assistant Principal Officer (APO) with Dun Laoghaire Vocational Education Committee with effect from the 1st of January, 1997. Prior to his appointment as APO he held the position of Administrative Officer. He was paid at the maximum point of the scale and performed additional duties for which he was paid allowances of £7112 per annum.
On the 1st of April, 1997, he was appointed to the position of APO with the newly constituted Regional Technical College (now Dun Laoghaire Institute of Art, Design and Technology). Following consideration of the assimilation arrangements to apply to the worker the Department of Education made the following offer:-
"Assimilation should be in accordance with normal rules. However, in the case of the worker, the Department is also prepared, having regard to any gratuities/honoraria received by him for more than two years in relation to VEC duties, to agree, for purposes of his transfer to the College of Art and Design, to enter at a point higher than the minimum to the annualised value of gratuities/honoraria concerned."
This offer resulted in the worker being placed on the top point of the APO scale with effect from the 1st of April, 1997.
The dispute concerns the Union's claim on behalf of the worker for the retention of the allowances which were part of his remuneration package prior to his transfer to the RTC on the 1st of April, 1997. It argues that under Section 12 of the Regional Technical Colleges Act, 1992, the worker's remuneration package is protected and provides for local negotiations regarding replacement duties for which allowances were paid.
Management rejects the claim. It argues that these additional duties were subject to approval by the Department of Education on an annual basis and that there was no guarantee or commitment that all or any of these allowances would continue from one year to the next.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
"The worker has been in receipt of the allowances for a significant time. Even though the allowances were temporary I consider that the worker was entitled to some redress for their removal.
I do not consider that they should be continued. I note that the worker gained seniority of the APO scale as part recompense for the loss of the allowances.
I believe that the worker should receive a once only lump sum in recognition of the loss of these offices.
I recommend that the Institute offers and the worker accepts the sum of £8000 in full and final settlement of this dispute."
The worker was named in the recommendion.
The Rights Commissioner's recommendation was appealed by the Union to the Labour Court on the 3rd of November, 1999 under Section 13 (9) of the Industrial Relations Act, 1969. The Labour Court heard the appeal on the 12th of May, 2000.
3. 1. The worker was appointed APO on a permanent whole-time basis by the Dun Laoghaire VEC with effect from the 1st of January, 1997. This appointment honoured the recommendation of the Rochford Report (details supplied) that the current responsibilities of his post merited an APO grading. It regularised the acting appointment approved by the Department of Education from the 18th of November, 1996. Notwithstanding the fact that a claim for such a regrading has existed since 1993, the Union accepted the regrading with effect from the 1st of January, 1997.
2. The initial decision to place the worker on point one of the APO scale and his retention of the allowances mirrowed earlier regrading arrangements whereby the worker was regraded from Grade VI to Grade VII in 1991.
3. In November, 1998, the Dun Laoghaire Institute of Art, Design and Technology placed the worker on the maximum point of the APO scale with effect from the 1st of April, 1997. The decision to retrospectively change the basis upon which the worker was transferred and impose a revised and reduced remuneration package is unacceptable.
4. Agreements reached between the Department of Education and IMPACT arising from the amalgamation of a number of VECs, confirm that individuals who were in receipt of allowances for two years would retain them on a personal basis. The terms of paragraph 8 of the amalgamation order clearly provide that existing staff would not suffer financially as a result of transfer.
5. The Union is concerned by the Department's attempt to rewrite the terms under which the Union agreed to the transfer of the worker. It is seeking similar arrangements approved on a personal basis for teachers, clerical and administrative staff within the new RTC established in Dun Laoghaire.
6. The worker is entitled to the payment of the allowances he received prior to his transfer. The Union is seeking to replace the additional duties undertaken in the start up phase of the College and is willing to negotiate comparable duties in accordance with the provision of Section 12 (2) of the Regional Technical Colleges Act.
4. 1. In a letter of the 24th of October, 1997 (details supplied), the Department of Education outlined its position that it had treated the worker fairly. In its consideration, it took into account that the allowance/honoraria payable were for duties additional to that of his normal duties. The payment of these allowances is governed by approval from the Department on an annual basis. There is no automatic entitlement to the payment of the allowances. The Department, accordingly, did not accept that the worker could hold a reasonable expectation that, if he had remained in the VEC, he would have continued to retain the allowance payments on a permanent basis. The Department further contended that although the worker agreed to accept an upgrading on the basis that the upgraded post would transfer to the RTC, the Department has treated the worker more than favourably in agreeing, on an exceptional basis, to a departure from the starting pay arrangement that would normally apply in cases of promotions/upgradings.
2. The effect of this decision by the Department was to provide the worker with reasonable compensation for the value of the allowances approximately £7,000 by placing him on a point on the scale higher than was normal or approved under assimilation arrangements. This resulted in the worker being placed on the top point of the APO scale with effect from the 1st of April, 1997.
3. The Institute is satisfied that the Rights Commissioner, having heard all of the evidence from both parties, made a recommendation that is fair and reasonable in all the circumstances. Accordingly, the Institute would respectfully request the Labour Court to uphold the Rights Commissioner's recommendation.
The Court has taken into account the written and oral presentations made by the parties. The Court recommends that the Rights Commissioner's recommendation should be amended. The Court determines that an ex-gratia payment of £16,000 should be paid in full and final settlement of this claim.
The Court so decides.
Signed on behalf of the Labour Court
22 May, 2000______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.