INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
IRISH BLOOD TRANSFUSION SERVICE
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY MICHAEL BRIDE)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal against Rights Commissioner's Recommendation R-037625-IR-05/GF.
2. The Irish Blood Transfusion Service is a national organisation, responsible for ensuring a continuous blood supply to the acute health sector in Ireland. The dispute involves a claim by the worker, a Scientist, employed by the Irish Blood Transfusion Service for 39 years. He is seeking the removal of a bar-point from the Senior Medical Laboratory Scientist scale. This bar-point was put in place as a result of the Report of the Expert Group on Medical Laboratory Technician/Technologist Grades, issued in February 2001. The Worker's claim arose out of this Report and the Report of the Medical Laboratory Services Review Group which applied a bar-point for Senior Medical Scientists who did not hold a minimum qualification for Technologist posts, i.e. possession of the Fellowship of the Academy of Medical Laboratory Sciences.
The Report, when published, sought to amalgamate Senior Medical Laboratory Scientists Grades 1 and 2. It also requires the Worker to hold a Masters qualification to progress beyond the bar point in the scale. The Worker claims that he is discriminated against as he does not enjoy the same salary as colleagues who have similar service, experience and doing work of an equal nature.
- Management claims that it is complying with the rules and regulations as set out in the Report and that progression beyond the 5th point of the scale is subject to an individual holding the prescribed qualifications, which the Worker has not attained, thereby precluding his progression beyond the 5th point of the scale. To do so would have serious repercussions for the organisation and the wider health sector as there are other employees in the Health Service who are precluded from progression in accordance with the established rules.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 15th March, 2006, the Rights Commissioner issued his recommendation as follows:
- “I have given this case careful consideration and I must come to the conclusion that bearing in mind the claimants age, qualifications and the wage comparison and the compelling submission made on his behalf I am compelled to find in his favour. I recommend that his claim should succeed and aware of the difficulties faced by the IBTB the recommendation be red circled in an appropriate manner”.
On the 30th March, 2005 IBEC on behalf of the Irish Blood Transfusion Service appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 6th July, 2006.
3.1 Management is complying with the rules and regulations as set out in the Report of the Expert Group on Medical Laboratory Technician/Technologist Grades and Report of the Medical Laboratory Service Review Group. This Report is a nationally negotiated agreement applying to Medical Laboratory Scientists as agreed, accepted and implemented by the Government. Therefore, this Report is not within the gift of either party to depart from this agreement and to pick and choose aspects of same of which they are satisfied with, while ignoring recommendations with which they may have difficulties. To concede this claim would result in the unravelling of a National Agreement.
2 The Expert Group recognised that some Senior Medial Scientists do not hold obligatory minimum qualifications required for Technologist posts at the time of publishing their Report in 2001. In recognition of this fact, The Expert Group consequently included a 7 year transition period provision for such staff currently holding the qualification laid down for Senior Technician posts who would then be considered eligible to apply for the new Senior Medical Scientist Posts but will have the bar point applied to them until a postgraduate qualification is obtained. Progression beyond the 5th point of the scale is subject to the individual holding the prescribed qualification, which the Worker has not attained, thereby precluding his progression on the scale.
3. Currently, the Worker has 9 years service until reaching retirement age. In 2001 he had 14 years service to attain the necessary qualification if he so wished. Management are willing to assist him in achieving the relevant qualifications if he wishes to do so. He would be eligible for admission to Postgraduate programmes in Biomedical Science in the University of Ulster via distance learning, upon successful completion of the PGDip (1 year) he would have the option of proceeding to the MSc Programme (1 year). Therefore he could achieve the necessary qualification within 2 years.
4.1 The Worker claims that when he commenced his employment with the Blood Transfusion Service, his qualification was a Diploma. No relevant Masters qualification existed. The vast majority of staff members then held Diplomas as a legitimate entry requirement, which was essentially accepted by the Health Service as being equivalent to degrees. However the newly constituted Masters programme does not recognise the same Diploma as a legitimate entry requirement into the one year full-time Masters degree. He claims he would have to acquire three years of a four year Degree before taking a year off work to pursue the one year full time Masters. This is the same requirement were he to pursue the Masters qualification via distance learning with an Institute outside the State, except it would take an additional year. Given his age, should he decide to go down this route, he will be eligible for retirement at the time he acquires the Masters' qualification. He believes that the above situation is unduly arduous on him.
2. The Worker believes that the situation as currently exists is unfair and inequitable insofar as he is working in the Irish Blood Transfusion Service alongside staff members who are doing work of equal value and yet receiving a higher salary. The Worker given his vast experience, has a supervisory/consultative role over individuals who, by virtue of the imposition of the bar point upon him are paid more than he is.
3. The Worker believes that the bar point on the scale as it exists is inequitable based upon the following:
- It contravenes the legal maxim of "equal pay for equal work";
- He has consistently updated his qualification and considered an expert in his field, yet the bar, as applied, takes no consideration of this;
- The bar point was removed on the entry grade where one carries out one cycle of Professional Enhancement Programme(PEP);
- The entry grade PEP requirement was waived for staff with less than 5 years to retirement (hence acknowledging the inequitable nature of its application to older workers)
- Anomalies exist within different grades, e.g. Chief Medical Scientist Grade 1 and Grade II were eliminated without the introduction of a bar point.
- There exists no Masters for people with vast experience such as the Worker to gain the requisite qualification in a reasonable amount of time.
- The Expert Group's recommendation that funding be made available to provide for a suitable course was not implemented.
4. The principal issue that concerns the Worker is not pay per se, but pension. As he nears retirement age, having worked in a professional capacity within the public sector for over 40 years by the time he retires, he wants to know that he can enjoy retirement to the fullest and the reason that this matter is of such vital importance to him.
The Court has given careful consideration to the submissions of the parties in this appeal. The Court believes that there are special circumstances in the Claimant's case which have been highlighted by his advocate. The claimant commenced his career before third level qualifications of the type now required, or their equivalent, were available. Moreover, the Claimant has long professional experience and there is no suggestion that the standard or quality of his work is in any way impaired by not having a third level qualification. There are cases in which experience and proven ability can be regarded as equivalent to an academic qualification.
Nonetheless, the Court cannot overlook the fact that a collective agreement is in place which makes incremental progression beyond the 5th point of the scale contingent upon the attainment of a particular qualification. The Claimant's conditions of employment, including conditions as to remuneration, are clearly determined by that collective agreement.
The Court does accept that in the particular circumstances of the Claimant his claim is meritorious. However, the Court cannot make a decision which could only be implemented by setting aside a clear and unambiguous provision in a collective agreement. The Court's difficulty in that regard is compounded by the fact that the parties to the collective agreement are not the parties in the case under investigation.
The Court is of the opinion that the Claimant should be provided with every reasonable accommodation to obtain the requisite qualification in sufficient time so as to have the incremental credit at issue fully reflected in his pension. Accordingly, the Court believes that if the Claimant undertakes the necessary course of study all fees and other costs involved should be met by the employer. The Claimant should also be accommodated with reasonable time off over the duration of the course to undertake study without loss of pay. This may involve adjusting the Claimant's workload appropriately.
The Court is of the view that these special arrangements are justified in the particular circumstances of the Claimant and should not be regarded as having any precedent value in any other case.
The Recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
26th July, 2006______________________
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.