INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr Nash
1. Change to criteria for the formation of promotional panel.
2. The dispute concerns the Union's claim that Teagasc changed one of four agreed criteria considered in a competition for the establishment of a 2004 technician promotional panel for advancement from career grade to promotional grade . The criterion in question was changed from 'Suitable Service' to 'Achievements'. The Union is seeking an acknowledgement from the Employer that it was in breach of the comprehensive agreement (1999) between the parties on the formation of promotional panels and to redress the situation of three workers disadvantaged by the change. In 1999, a comprehensive agreement was reached between the parties concerning issues relating to promotional panels. In 2003, on the expiry of the previous panel (2000), vacancies arose and a new panel was required. This panel was formed in 2004. Teagasc raised its concerns with the Union about 'Suitable Service' as a criterion for competition. Subsequently the Union advised Teagasc that it is was agreeable to the establishment of a new panel but only on the basis of the previously agreed criteria (1999 agreement). Teagasc, however, proceeded with the creation of a new panel, using the 'Achievement' criterion. A panel was formed and a number of workers have already been promoted. After the formation of the panel, it became apparent to some candidates that the marks they achieved were less than anticipated and only following investigation by them was the change to criteria used identified. Teagasc claims that it had no alternative but to change the criterion from 'Suitable Service' to 'Achievements', on the grounds that as service is age related, it would be open to allegations of age discrimination against younger candidates. This was unacceptable to the Union. The dispute was referred to the Labour Relations Commission. A conciliation conference was held but agreement was not reached. The dispute was referred to the Labour Court on the 26th January, 2006 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Court hearing was held on the 5th July, 2006.
3. 1. The parties fully entered into an agreement in 1999 with regard to the issues governing Teagasc technician promotional system. The Union had agreed with Teagasc to proceed with the new promotional panels strictly in accordance with the 1999 agreement. Had Teagasc disputed the Union position it should have corresponded with the Union outlining its position and stating that it could not proceed with the promotional panels until the issue was resolved, thereby utilising the full third party industrial relations machinery. Management did not do this.
2. Three workers (details supplied to the Court) would have achieved significantly higher position on the panel had the agreed criteria been used. Teagasc should make good to the workers by offering them promotion forthwith.
3. Management has argued that to implement the 1999 agreement would have breached the Employment Equality Act, 1998. However, it has failed to present any significant supporting arguments to this claim. If Management were consistent, then the 1999 agreement, which was operational in 2000, was unlawful as well, given that the Act was introduced in 1998. The Union is not aware of any issue in relation to possible breaches of the1998 Act, which the Employer raised in the discussions on the 1999 agreement.
4. The advertisement for the 2004 panel stated the essential requirements remain the same as for the 2000 panel, they being "at least seven years suitable experience, either a recognised qualification or good knowledge of current literature, a practice in the relevant field". Teagasc, on the one hand is arguing that it is unacceptable to award points based on suitable service, yet on the other hand is insisting that seven years suitable service is an essential requirement. This is contradictory and inconsistent.
5. The Union is prepared to negotiate a new agreement in conjunction with other unions in the employment for promotional systems. However, the position of the three workers concerned should be rectified and they should be promoted in line with the original criteria.
4. 1. Management made the Union aware in advance of the 2004 promotion competition taking place that it intended to amend the 'Suitable Service' criterion of the 1999 promotions agreement on the basis that it had received legal advice that the potential existed for claims of discrimination on age grounds against Teagasc. Section 6(2) of the Employment Equality Act, 1998 makes it illegal to discriminate against persons on the basis 'that they are of different ages'. The advice received was that the 'Suitable Service' criterion had the potential to skew the results of the promotion competition in favour of older candidates regardless of suitability for the post and that this was, therefore, in breach of the Act.
2. While the Union disputed the legal grounds for such a change, it did not look for further discussions and/or agreement in advance, on the alternative criterion to be used. It was made clear to Management that the Union's priority was for the competition to proceed without further delay.
3. The Union has not objected to the panel that was established by the competition being used for subsequent promotions. In the absence of objective criteria to justify favourable treatment of older candidates through the use of 'Suitable Service', the outcome could possibly have resulted in Teagasc and SIPTU having a case to answer in relation to discrimination on age grounds.
4. There is an onus on all parties to ensure that all agreements are in accordance with employment legislation. SIPTU had been requested to set out the reasons for its position that 'Suitable Service' is not discriminatory on age grounds but it has chosen not to do so. The failure by SIPTU to set out the reasons for its position (that the 1999 promotions agreement conforms with current equality legislation) suggests that it is not sustainable on legal grounds.
5. The decision to amend criteria for the technician promotion competition in 2004 was valid and necessary to ensure compliance with the terms of the Employment Equality Act, 1998.
The case before the Court relates to a claim made by the Union on behalf of Research Technicians concerning a change to the criteria used for the selection process and formation of a promotional panel in 2004.
Management stated that the change to the criteria under the heading “Suitable Service” was made following legal advice to ensure the criteria was in compliance with the Employment Equality Act, 1998. Previously the criteria used allocated .5% out of a maximum 20 marks for each year of suitable service held by the applicant. In addressing the issue, management asked the Interview Board to decide on the alternative criteria to be used for the 2004 promotional panel. The Board decided to substitute the service criteria for a new criteria referred to as “Achievements” and to accordingly award 20 marks under that heading.
The Union objected to this change and submitted to the Court that the change had been made without any consultation, it questioned the necessity for the change in criteria and sought redress for three named Technicians who had lost out as a result.
Having considered the views of the parties expressed in their oral and written submissions, the Court is of the view that it was prudent on the Company to eliminate the service criteria considering the legal advice received and therefore, does not recommend in favour of the Union’s claim for promotion of the three named Technicians in line with the original criteria.
However, the Court is of the view that the matter should have been the subject of consultation with the Union, the legal advice should have been provided to them and agreed criteria should have been mutually agreed upon which fully complied with legislation. In view of this finding, the Court recommends that the three named Technicians, who were disadvantaged by this change, should be paid a ‘gesture of goodwill’ payment of €5000 each, to be accepted in full and final settlement of this claim.
The Court notes that a process is currently underway between the Company and a number of Unions to agree a new promotional structure across all grades and categories of employment.
Signed on behalf of the Labour Court
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.