FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE DUBLIN MID LEINSTER - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner R-076820-Ir-09/Gc
BACKGROUND:
2. The issue before the Court concerns a claim by the worker that he has been unfairly treated by the Health Service Executive. The Worker concerned has been employed with the HSE as a porter since 1996. A new rostering system was introduced in 1998 whereby the 7 porters with the longest service operated the switchboard and they were covered by another roster of 4. Between 2000 and 2005 a number of porters on the 4 person roster moved to the 7 person roster as positions became available. In 2004 the worker concerned covered for a vacant position on the 7 person roster. He held the position for two years but did not receive the allowance associated with the 7 person roster. In 2006 a Collective Agreement between the Unions and the HSE was entered into regarding the filling of vacancies. It was agreed that all vacancies would be filled by open competition. The Worker contends that he was denied the same terms and conditions as previous porters who moved from one roster to the other.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 3rd November, 2010 the Rights Commissioner issued her recommendation as follows:
"While I note that prior to 2006, the vacancies on the 7 person roster were filled without interview, and the claimant felt entitled to the next vacancy, there is a clear collective agreement entered into between SIPTU and HSE regarding the advertising and filling of such posts and I cannot recommend the parties deviate from such an agreement . I therefore cannot find in favour of the claimant's case."
On the 30th November, 2009 the Worker 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 1st June, 2010.
WORKER'S ARGUMENTS:
3. 1 In 2004 a position became vacant on the 7 person roster and following custom and practice he moved to that roster and held the position for over 2 years. He covered no other duties.
2 The worker had responsibility for the phone system and cardiac arrest system but was not properly compensated for this. The worker contends that he should be given the next available vacancy on the 7 person roster without interview.
MANAGEMENT'S ARGUMENTS:
4. 1 The arrangements for the filling of vacancies on the 7 person roster is the subject of a Collective Agreement between the HSE and SIPTU. Management is satisfied that it has complied with the terms of this Agreement.
2 The issue of how a vacant post is to be filled has been raised by the Worker with both his Union and the HSE on a number of occasions. He has consistently been referred to the Collective Agreement
DECISION:
It is clear to the Court that a collective agreement was concluded between the Union of which the Claimant was a member and the HSE which provided for the filling of the disputed post by competition. It is not for the Court to look behind that agreement or to question the circumstances in which it was ratified. However on the information before the Court there is nothing to suggest any irregularity in the manner in which the agreement came into being.
In these circumstances the conclusion reached by the Rights Commissioner accords with the facts of the case and there is no basis upon which the Court could interfere with her recommendation.
Accordingly the recommendation of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
18th June, 2010______________________
DNChairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.