INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr McGee
Employer Member: Mr Grier
Worker Member: Mr Nash
1. Appeal against Rights Commissioner's Recommendation IR.15828/03.
2. The appeal concerns a worker who took part in a selection process undertaken by the Company in a recruitment campaign on the 10th September, 2001. He successfully completed the process and commenced employment on the 3rd December, 2001 as a Station Operative (SO) Grade 4. The Company deemed him a new entrant and placed him on the first point of a new ten point incremental scale. The S.O. grade was introduced by agreement on the 22nd October, 2001 following acceptance by the parties of LCR 16895 which covered issues contained in the New Deal for S.O. grade. The New Deal provided for revised pay, incremental pay scales, and five over seven day working. The agreement contained a clause that any worker employed after this date would be placed on a ten point incremental scale. It was agreed that the New Deal would apply to all new entrants employed after 22nd October, 2001. The Union claims that the claimant was interviewed prior to 22nd October, 2001 and that his contract indicated terms appropriate to existing staff in employment prior to the New Deal agreement. Existing staff were placed at the top point of the S.O.4 scale. The Union claims that the claimant should also be placed at the top of the S.O. 4 scale. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 14th April, 2004 the Rights Commissioner issued his recommendation as follows
"I find against the worker for the following reasons:
1. The agreement reached with the Trade Unions was specific in placing all new entrants after 22nd October, 2001 on the new conditions. The worker was employed after the date and therefore it was correct that his rate of pay reflected that of a new entrant employed post the agreed implementation date.
2. While I accept that the Conditions of Employment accepted and signed by the worker had references to conditions applicable to employees employed pre 22nd October, 2001, there is no ambiguity in those conditions regarding either the date his employment commenced or the basic rate of pay he was to be paid.
3. The worker was treated in exactly the same manner as other of his colleagues recruited at the same time.
(The worker was named in the Rights Commissioner's recommendation)
On the 7th May, 2004 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 19th November, 2004.
3. 1. The terms and conditions which the claimant received related to the old agreement, applicable to existing employees as instanced in Clause 4 which stated: "your basic pay rate will be £ 235.22 (€298.67),overtime when worked will be paid for at premium rates".Under the New Deal no overtime is worked. A composite rate of pay is paid and there is no premium payment. Similarly Clauses 6,7 9,10, all refer to the old agreement. The claimant signed these terms and conditions on the 3rd December, 2001. No reference is made to the New Deal.
2. The claimant was misled when attaching his signature on taking up employment. He did not receive the proper information. He was placed on the 1st point instead of the top point of the pay scale which all other existing employees were placed on. This resulted in the claimant receiving substantially less earnings than colleagues carrying out the same duties.
4. 1. The claimant was correctly deemed a new entrant as he commenced employment on the 3rd December, 2001. At the time of his interview there was no agreement or acceptance of the New Deal proposals. All candidates were advised that a New Deal was in discussion which would improve the rate of pay, introduce incremental scales and provide for 5/7 day working.
2. The claimant signed for conditions of employment on 3rd December, 2001 which indicated a weekly rate of pay which was the rate applicable to the Depotperson grade. This grade was replaced in the New Deal agreement. This documentation was issued to him in an interim period, during which the new grades and new pay structures were being phased in. The new rates of pay associated with the New Deal were introduced with effect from 22nd October, 2001.
The Court accepts the date of 22nd October, 2001 as a cut-off point for all new entrants under the "New Deal".
The Court also, however, feels there was some ambiguity in the manner in which the claimant signed and accepted the Conditions of Employment offered to him.
As the matter fundamentally concerns the claimant's grading since the time of his recruitment, the Court decides that the matter should be properly before the independently chaired Monitoring Committee for final and binding determination and varies the Rights Commissioner's Recommendation accordingly.
Signed on behalf of the Labour Court
30th November, 2004______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.