Worker

Employer

Anonymised Parties

Representatives

Brian McAvinue Connect Trade Union

Management

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003550

11/12/2024

The worker is employed by the employer and has been in this employment since September 1997.

This complaint was received by the Workplace Relations Commission on 11th December 2024.

In complaints submitted under the Industrial Relations Act the complainant is referred to as the worker and the respondent is referred to as the employer.

Background

This complaint relates to a member of Connect Trade Union who is employed by the employer as a Foremen - Housing and Residential Services, and his current location of employment is at the North Central Operations Department (NCOD). The worker along with a number of his colleagues in the metal fabrication unit (his previous role) was a part of a 2009 agreement which provided for a "Red Circling "of 6 hours overtime. The worker applied for the position of foreman in Housing and Residential Services and was successful and therefore appointed to his new role on 21st March 2022. The worker has been carrying out this role to date. The worker noticed soon after promotion that the "Red Circling "of 6 hours overtime that was applicable to him, was no longer being applied.

Engagement with the Employer

Connect Trade Union on behalf of our member, have been in continuous talks locally with the employer in relation to this issue, however we have been unsuccessful in reaching a satisfactory outcome. The employer is stating that upon promotion, the worker was no longer entitled to carry his long standing "Red Circling "of 6 hours overtime, and while we accept that the employer has made x2 offers to resolve this issue, its falls way short in respect of the cumulative amount that the "red circling" agreement attracted. Connect Trade Union believed local procedures to have been exhausted and therefore informed the employer of our intention to refer the matter for the Adjudication Services of the Workplace Relations Commission.

Unions Case

In representing our member, it is our view that he has not only lost out on these guaranteed hours, but he has also lost out on the superannuation applicable to those hours. The worker was not informed at any stage during the interview process or indeed on his promotional job offer that he would lose his "Red Circling "of 6 hours overtime. The worker is now in this promotional role and has saw little or no increase in his income as a result, however he has seen a significant increase in his responsibilities. Should the worker have been informed of the loss to him in respect of the "Red Circling "of 6 hours overtime then he would have been in a better position to make an informed decision in respect of accepting or rejecting this new job offer. The process involved in fulfilling this role "did not" take into consideration the current entitlements of the various applicants.

Conclusion

It is our view that the worker should have been informed upon the offering of this new role, that the "terms and conditions" applicable to his then current position in the welders shed, were not a feature of the promotional role, and therefore he would be removing himself from the 2009 welders agreement. This process we believe was flawed in this regard and places employees in similar situations with "red circling arrangements" in a position that they are denied opportunities of promotion, due to a potential loss of earnings that have been previously cemented by agreements. We would ask that the Adjudicator see favourably to the position of the worker and see that his entitlement of the "Red Circling "of 6 hours overtime, be restored and backdated to the date that this agreement was removed from him.

Employment Grade

The worker commenced employment with the employer on a temporary basis as a Welder from the 14th September 1997 assigned to Housing & Residential Services. On the 31st October 1999, the Worker became a permanent Welder and was assigned to Housing Residential Services, Housing Maintenance. Following negotiations held under the Labour Relations Commission in 2009, the Worker was regraded to Chargehand Welder. Following a competitive recruitment/ promotional competition the Worker was appointed Foreman, Housing & Residential Services, Paint Squad, Housing Maintenance from 21st March 2022.

Background to case.

 The regrading of the worker referred to above came directly from a pay claim brought by the Welders of the Fabrication Unit, Housing Maintenance due to the nature of their work. Original Claim for Regrading Subsequent to this, an agreement was reached under the auspices of the Labour Relation Commission (LRC) in 2009 regarding the regrading claim. The Worker was successful in the most recent Housing Maintenance, Foreman competition and was offered the position of Foreman in the Paint Squad, Housing Maintenance. This offer was accepted by the worker, and he remains in that position since his appointment on the 21st March 2022. In May 2022, Connect Trade Union submitted a claim on behalf of the Worker. Connect Trade Union claim that the employer were in breach of the 2009 LRC agreement. The worker was no longer in receipt of payment for 6 hours regular and rostered overtime he received while in the role as a Chargehand Welder.

The conditions of the 2009 Welders agreement are as follows:

·       The 6 Welders involved to be regraded as Chargehand on the red circled basis with effect from 6th   April 2009, subject to agreement on a revised job specification.

·       The 6 employees involved to be guaranteed 6 hours overtime per week on a regular and rostered basis. The roster to be drawn up by the Area Maintenance Officer. This will be included as part of regular pay for holiday and pension. Any other overtime or on call will be incidental and will not be included for holiday or pension.

·       This proposal is in full and final settlement of the claims in respect of regrading and the inclusion of overtime in holiday pay.

On promotion to Foreman the worker was no longer doing the work of a Chargehand Welder nor part of the Metal Fabrication Unit and as such could not be considered part of the Area Maintenance Officer overtime roster for the Fabrication Unit. As clearly outlined above this was a condition for the 6 hours overtime. As there was no local resolution, Connect Trade Union issued a collective claim through the Workplace Relations Commission on behalf of all their members in the Metal Fabrication Unit.

Conciliation Claim

A Conciliation hearing into the claim took place on Tuesday 5th September 2023 at 10.30. The discussion mainly involved the worker and two other Former Chargehand Welders promoted to Foreman and the cessation of their 6 hours per week overtime. There was no resolution to this issue. Following the Conciliation hearing, Connect Trade Union reengaged with Management in relation to the three staff members. Two of which including the worker subsequently issued claims with the Workplace Commission for an Adjudication hearing.

Employer’s position

It is Managements position that the 6 hours associated with the Welders agreement in 2009 is a collective claim relating to the application of the agreement to the group of workers party to that agreement. However, taking the worker’s case in isolation of the other workers it is Management’s position that: ·

·       The worker’s current role as Foreman is not consistent with the role of Chargehand Welder as outlined in the 2009 Welders claim that subsequently lead to the agreement under the auspices of the LRC.

·       The worker has been promoted out of the position of Chargehand Welder through competition that he opted to take part in.

·       The worker is now assigned to the Paint Squad, Housing Maintenance and not the Metal Fabrication Unit where the Chargehand Welders were based.

·       The worker cannot be placed on the roster associated with this overtime and the agreement.

·       The Area Maintenance Officer, Paint Squad has confirmed that there is not 6 hours per week overtime available to offer the worker in his current role however, he is in receipt of four hours at double time per fortnight.

·       From discussions with Connect Trade Union and local management, it was made clear that the Worker does not want to work 6 hours per week overtime on a regular and rostered basis even if it were made available to him.

Management do acknowledge that when all elements of pay including overtime, allowances and basic pay are considered as a whole that there has been a loss to the worker. This loss is not on his substantive basic rate of pay but the cumulative value of all earnings following promotion. The Worker remains in receipt of 2.5 hours at double time per fortnight on a regular and rostered overtime in his current position, there is also sporadic overtime available.

In acknowledging the overtime loss, two offers were made on a without prejudice basis to the worker in order to resolve this issue. These offers were made through the normal agreed mechanism used to resolve industrial relations disputes concerning the amendment or cessation of regular and rostered overtime or allowances i.e. 1.5 times the total annual value loss of earnings taking account of fixed and variable earnings over the 12 month period. To be paid in 2 instalments. Both offers were rejected.

Conclusion

Management believe that while there remains Chargehand Welders employed in the Fabrication Unit party to the 2009 agreement that any claim in respect of the application of the provisions of the agreement is a collective claim. There currently remains Chargehand Welders party to the original claim employed in the Metal Fabrication Unit. Notwithstanding the collective issue, the worker is no longer carrying out the work associated with the Welders claim and subsequent agreement in 2009 nor is he part of the Metal Fabrication Unit and as such, he cannot be included on the Area Maintenance Officer roster for the overtime for Chargehand Welders.

Each and every position in an organisation has its own terms and conditions. When an employee applies for a new position within the same organisation (normally for promotional reasons) they are accepting that with the new job, there will be new terms and conditions.

In the instant case I can accept that the matter of terms and conditions may not have been discussed at interview, it should have been.

I note that the employer has offered a payment to the worker and I now recommend that the worker accept the offer made by the employer on 15th August 2024 in full and final settlement of his complaint.