INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
NATIONAL BUS AND RAIL UNION
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. (a) Promotion selection. (b) Filling of permanent vacancies in the Infrastructure Department (Ganger positions).
2. The dispute before the Court concerns a claim by the Unions on behalf of members in relation to (a) promotion selection and (b) the filling of permanent vacancies for operative grades in the Infrastructure Department.
(a) Promotion selection
The Unions maintain that appointments to promotional positions should be done on a seniority basis as was the case in the past.
The Company argues that the job is changing, therefore, the most suitable employees should be appointed to promotional positions.
(b) Filling of permanent vacancies
The Company employs a large number of temporary staff. When permanent vacancies arise, the Company wants to interview staff and appoint the most suitable person to the position.
The Unions want the temporary staff to be made permanent on a seniority basis. They also want all temporary staff with two years' continuous service to be appointed to permanent positions.
The dispute could not be resolved at local level, and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 17th of June, 2002, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 26th of June, 2002.
3. 1. Promotional positions cannot be filled on seniority alone. The job is changing and the best selection process is assessment by interview and appointing the most suitable person to the position.
2. It would be financially unsustainable to concede the Unions' claim to appoint all temporary staff with two years' service to permanent positions.
3. The Company remains available to co-operate with an independent examination of selection processes as proposed by the Labour Relations Commission.
4. 1. Appointments to promotional positions should be done on a seniority basis, all things being equal.
2. Permanent positions should be filled by temporary staff on a seniority basis.
3. All temporary staff with two years' continuous service should be appointed to permanent positions.
The Court has given careful consideration to all of the issues raised by the parties in their written and oral presentations.
In general, the Court fully supports the Company's contention that the primary consideration in filling promotional positions and in making appointments to permanent posts should be the suitability of candidates as assessed through transparent and objective selection procedures. The Court does, however, believe that where candidates are equally suitable, seniority could be used as the deciding factor.
Nonetheless, the Court cannot ignore the fact that traditionally promotions to ganger vacancies within the Company have been made solely on the basis of seniority. While the Court does not regard that arrangement as suitable or viable into the future, change should best be brought about by agreement between the parties.
The Court recommends that the parties should enter into immediate discussions with a view to putting in place a merit based selection process for the filling of both acting and substantive ganger posts. It is primarily a matter for the parties to design such an arrangement (including the criterion for determining suitability). However, consideration should be given to the establishment, in the first instance, of panels of persons selected solely on merit as suitable for appointment to acting and substantive ganger posts. When vacancies arise appointments could be made from the panel on a seniority basis.
The Court further recommends that these discussions should be completed within a period of two months. As proposed at conciliation, the parties should give consideration to the appointment of an independent expert to assist them in designing a selection process.
In the interim, the present arrangement (Appointment to Ganger posts on Seniority) should continue. The Court further recommends that the two individuals who were not appointed to Ganger positions on the basis of their seniority (One in Cork, and One in Limerick Junction) should continue in an acting position and should be appointed to the next available suitable vacancy.
The Court accepts that there are particular problems with regard to contract staff. While staff have been employed by the Company on fixed term and fixed purpose contracts over many years there seems to be no clear agreement or understanding on the circumstances in which contract staff can be used and, more particularly, on the circumstances in which these contracts can be terminated. The Court recommends that, as a matter of urgency, the parties should conclude a formal agreement relating to all matters relating to contract staff including their tenure in employment.
With regard to the present position, the Court recommends that contract staff who have been continuously employed for a period of not less than four years at the date of this recommendation should, on a once-off basis, be absorbed into the permanent workforce of the Company. For the avoidance of doubt, this is not intended to permanently increase the agreed staffing levels in this section and they should be reduced back to the agreed numbers by natural wastage over time. In other cases, the terms of the contract relating to the circumstances in which they can be terminated should apply.
Signed on behalf of the Labour Court
18th July, 2002______________________
Enquiries concerning this Recommendation should be addressed to Gerardine Buckley, Court Secretary.