FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : SHANNON DEVELOPMENT (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SIPTU & NUJ DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Implementation of grading review and payment of pay appropriate to promotional grade.
BACKGROUND:
2. This dispute concerns a claim by the Trade Unions for the implementation of the Grading Review and payment to their members of the appropriate pay for the work they are undertaking. This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 8thApril 2013, in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 16thApril 2013.
UNION’S ARGUMENTS:
3. 1.The promotional posts were advertised and successful applicants took up their new responsibilities assuming there was no obstacle to their promotion.
- 2. In respect of the evaluations carried out under the Grading Review Mechanism (GRM ) sanction was received from the appropriate Government Department. Following the evaluations letters were issued to the successful applicants confirming their regrading.
3. The Senior Managers at the time of their appointment were given an assurance that their grades would be regularised as soon as possible.
4. 1.The Company at all times made it clear that they were bound by the Government embargo on recruitment and promotions in the Public Sector and this was documented in all advertisements and letters of appointment.
- 2. Having received approval from the appropriate Government Department regarding the advertising of promotional positions and the carrying out of job evaluations the Company entered into the promotion/evaluation process in good faith as part of the new structures required to implement its strategic plan.
3. In addition to the restrictions under the moratorium on recruitment and promotions the Company is also subject to the provisions of Financial Emergency Measures in the Public Interest (No2) legislation and general Government pay policy.
RECOMMENDATION:
There are three interrelated issues that form the subject matter of this dispute. They are described in the Unions’ submission as follows: -
- A - "Twelve Members appointed to promotional posts following advert and competition have not received the pay appropriate to their grade, although they have received the increased annual leave;
B - Implementation of outcome of grading review for thirteen members
C- Four Senior Managers appointed as Division Managers from the beginning of March 2009 following a competitive process have not been appointed to the grade of E1,despite the commitment to same by the Chief Executive, but instead 3 are in receipt of an allowance of €4,000 p.a. and the Finance Manager, who is also a member of the Executive Committee receive an allowance of €8,035 in respect of her dual role.”
The Unions contend that the members associated with these claims have been promoted or re-graded and are currently undertaking the duties of the grades that they now occupy (and this is not disputed by the employer). They contend that the employer’s refusal to pay the claimant the rate appropriate to their grade is not sustainable.
The moratorium on recruitment and promotions in the public sector is part of Government policy and is binding on public service employers. The binding nature of the moratorium has consistently been recognised by this Court, in consequence of which it has generally not recommended concession of claims by Trade Unions for promotions or re-grading. However, this case is clearly distinguishable from the generality of cases in which the applicability of either the moratorium, the Act of 2009 or the PSA are in issue. In this case the Unions are not claiming that their members be either promoted or re-graded. Rather, in the case of those associated with claims A and C, they have already been promoted in the normal way, following advertisement and competition, and have been performing the duties of the posts to which they were appointed for some years.
Whether the employer was right or wrong in promoting these individuals is not a matter for this Court. What is of central relevance is the uncontested fact that they were promoted. If the employer acted outside of its authority (and this Court makes no such finding) that is not a matter that should effect the entitlement of the workers concerned to the full benefits attaching to the posts that they now occupy. In the Court’s opinion it would be an affront to logic and all known principles of good employment practice to hold that the moratorium, or the other instruments relied upon by the employer, could operate so as to deprive a worker of the financial benefits of a post to which they were freely appointed by their employer, the duties of which they continue to perform.
In the case of those associated with claim B similar considerations apply. The employer put in place a process of assessing the grading of the posts in issue. Moreover, it did so with the necessary approval. It seems to the Court that the granting of approval to review these posts implied a concomitant commitment to implement the outcome of the review. In the event the Claimants were re-graded and the only outstanding issue is the payment of the appropriate rate for the grade that they now occupy.
In the case of those associated with claim C it is noted that the parties are agreed that they are performing duties which are appropriate to the E1 grade. This should now be acknowledged and confirmed by the employer and they should hold that grade on a personal to holder basis.
For all of the reasons set out above the Court recommends that the Unions’ claims be conceded. In making this Recommendation the Court wishes to emphasise that it is doing so having regard to the unique circumstances giving rise to these claims. Consequently this recommendation is to be regarded as having no precedent value and should not be relied upon or cited in support of any other claim howsoever arising.
Signed on behalf of the Labour Court
Kevin Duffy
18th April, 2013______________________
C. R.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.