FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MAYO COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - A WORKER REPRESENTED BY CATHY MAGUIRE B.L. INSTRUCTED BY THOMAS J WALSH SOLICITOR) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Various Issues
BACKGROUND:
2. This case concerns a dispute between Mayo County Council (represented by the LGMSB) and the worker in relation to a) grading, b) the payment of Long Service Increments (LSI's) and c) his assignment location in the Council's Planning Department. The worker is employed as an Archaelogist and is seeking regrading to the Senior Engineer Grade on the basis of experience and level of responsibility.
Management refute this claim on the basis that the worker's duties were not comparable to that of the Senior Engineer Grade. Management further contend that LSI's did not apply to the post of Project Archaelogist and that the worker was aware of this when applying for the post. It is also Management's contention that the worker is assigned to the Planning Unit because there is limited archaelogical roles currently available in the County Council.
The worker referred the dispute to the Labour Court on 2nd June, 2009 in accordance with Section 20(1) of the Industrial Relaions Act, 1969 and agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on 20th October, 2009.
WORKER'S ARGUMENTS:
3 1 The level of the worker's experience and resonsibilities merit a regrading to that of Senior Engineer Grade. The work carried out is analogous to the applicable pay rate and grading of a Senior Engineer and should be applied accordingly.
2 The worker's role extended beyond the Project Archaeologists role and, therefore, an entitlement exists to the aplication of the relevant LSI's in line with comparable employees of the Council.
3 It is unfair that the worker, having significant archaelogical experience in road projects, is now assigned to the Planning Department.
MANAGEMENT'S ARGUMENTS:
4 1 The worker's position and level of skills/responsibilities were not comparable to that of Senior Engineer and his claim for regrading to that level is without merit.
2 LSI's did not apply to the Project Archaeologist position that the worker applied for. This was known to the worker at the time.
3 The worker is assigned to the Planning Department as a result of restructuring within the Council and the transfer of road projects to the National Roads Authority.
RECOMMENDATION:
The claim before the Court under section 20(i) of the Industrial Relations Act, 1969 concerned a worker employed as an Archaeologist with the County Council. He sought reinstatement to the position as “Senior Archaeologist” at the same grade and rate of pay as a Senior Engineer Grade. He also sought Long Service Increments in recognition of all his years of service and he disputed his assignment to the Councils’ Planning Department.
The claimant had been employed as an Archaeologist on a number of successive fixed-term contracts since 1989, during which time his salary was based on the Office of Public Works (OPW) rates for contract work and the employment was project based. In 1997 the claimant sought to have his salary re-graded to equate to that of Resident Engineer – the salary applicable to an engineer at Executive Engineer level on a capital project. In 1998 the Council decided to issue him with a 3-year fixed-term contract and place him on Senior Archaeologist Grade II (at the minimum of the scale) i.e. the grade applicable to grades in the OPW. The post was linked to projects and schemes over the 3-years.
In 2000 the National Roads Authority (NRA) advertised for Project Archaeologists on a contract basis to work with local authorities, with successful candidates being appointed to various locations and employed by local authorities, salaries were recouped from NRA. The claimant was successful and was offered a 5-year contract and the salary was set by NRA. His contract was further extended by the local authority for one year to February 2007. In the meantime the NRA decided to directly contract Archaeologist posts (including at the higher level Archaeological posts i.e. Grade I) and accordingly all existing post holders were invited to apply. However, he declined to apply. He was then offered a contract of indefinite duration by Mayo County Council on (Senior) Archaeologist Grade II (at the maximum of the scale).
Having considered the oral and written submissions the Court recommends as follows:-
Regrading claim:-
The claimant has submitted that he should be regarded to the same grade and salary scale as Senior Engineer Grade. The following details his employment history within the County Council:
Archaeologist Grade III (Basic Grade) 1989 – 1990
Archaeologist Grade III (Basic Grade) 1992 – 1998
Senior Archaeologist Gr II (min of scale) 1998 – 2001
Senior Archaeologist Gr II (max of scale) 2001 - 2006
Senior Archaeologist Gr II (max of scale) 2006 - 2007
He is currently graded as Archaeologist Grade II – analogous to Engineer Grade II grade.
The Council acknowledged that the claimant carried out his duties in a flexible, efficient and cost effective manner. It acknowledged his knowledge and expertise on the Roads Programme however, it disputed his contention that his duties, skill and responsibilities were equal to those of a Senior Engineer.
The Council stated that the NRA held the view that the claimant’s position as Project Archaeologist was not comparable to that of Senior Engineer within the National Road Regional Design Office. On those projects the Senior Engineer was responsible for budgets of approximately €78million whereas the claimant had responsibility for budgets of approximately €3.5million.
The claimant told the Court that archaeology had been carried out on all NRA schemes in County Mayo since 1989, using in-house Archaeologists under the Claimant’s direction. He said that by 2007 there were 35 archaeologists reporting to him and he was in turn reporting to the County Manager for NRA works, and to Director of Services of the County Council for other Council works. The Council on the other hand said that archaeologists reported to him for annual leave and PMDS purposes only and submitted details to the Court of the differences between the two grades.
The Court had considered the points raised and accepts that the claimant was on the appropriate grade for the work he carried out and accordingly does not concede his claim for regarding to Senior Engineer Grade.
Reinstatement to the position as Senior Archaeologist and his assignment to the Planning Department:-
The Council made the point that since 2007 there were no in-house archaeologists reporting to him as it no longer employed as many as it had done when it was involved in NRA schemes in County Mayo. It did however, acknowledge that he should be recognised as a ‘Senior’ Archaeologist and that he is entitled to bear that title. Accordingly, the Court recommends that the claimant should have his title ‘Senior Archaeologist’ restored to him.
The Court understands that due to the restructuring which took place in 2007 with the transfer of road projects to NRA, there are now very limited roles available in the Council for archaeology positions and therefore he was assigned to the Planning Department. In those circumstances the Court does not recommend a change to the assignment.
Long Service Increment (LSI):-
The claimant sought LSI i from 2004 and LSI ii from 2008.
The Council stated that when he applied for the role as Project Archaeologist, LSIs did not apply to the scales. The Council disputed his claim stating that he had knowingly accepted such contracts in 2001, was placed on the maximum of the scale and continued on these types of contracts until 2007, therefore he had no entitlement to LSIs.
The claimant accepted that he was discharging the Council’s role as a Project Archaeologist during this time however, he contended that his role also extended beyond that to other jobs for the Council and accordingly, he should be entitled to the LSI’s from the appropriate dates. He held that other than his entitlement to LSIs he was on the same terms and conditions as other similar grades employed by the Council.
The Court notes that the claimant has been in receipt of LSI i since he was placed on a contract of indefinite duration in February 2007.
In all the circumstances of this case, the Court recommends that he should be deemed to have been entitled to LSI ii with effect from 6th February 2008. Accordingly, he should be paid the appropriate retrospection due, as soon as possible.
Finally, the Court notes that he was paid all outstanding monies due since July 2006 under national wage agreements were paid on 12th April 2007.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th November 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.