Labour Court Database __________________________________________________________________________________ File Number: CD86689 Case Number: LCR10762 Section / Act: S67 Parties: KILKENNY CORPORATION - and - ITGWU |
Method of recruitment of permanent workers.
Recommendation:
6. The Court notes that the parties to this dispute have adopted
the Code of Practice on Security of Employment for Employee Grades
in Local Authorities with effect from 1st April, 1986. Paragraph
4.2. of that document refers to Treatment of Non-Permanent
Employees.
In the spirit of paragraph 4.2 the Court is of the view that it is
reasonable that such employees should have expectations to fill
permanent vacancies as they arise, subject to the usual conditions
as to health, probation period etc.
The Court, recommends that in the future, permanent vacancies
arising in the Local Authority should be filled from suitable
candidates from the non-permanent employee category and that the
principle of open competition should be applied to recruit
employees into the category of non-permanent employee.
Division: Ms Owens Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD86689 THE LABOUR COURT LCR10762
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. 10762
PARTIES: KILKENNY CORPORATION
AND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Method of recruitment of permanent workers.
Background:
2. A code of practice on security of employment for employee
grades in local authorities, which was prepared by a working party
established by the Minister for the Environment, was agreed in
November, 1985 (copy supplied to the Court). The code envisaged
three categories of full-time employees of local authorities -
permanent, non-permanent and temporary. It recommended that
permanent employees should not be laid off and there should be no
artificial barriers in progressing to permanent status. It was
intended that this code of practice would be adopted on a
voluntary basis by local authorities and the relevant trade
unions. The proposed date for implementation of the
recommendations contained in the code was 1st April, 1986. The
code was adopted by the parties to this dispute.
3. In May, 1986 the Corporation advertised seven permanent
positions for general operatives - the positions to be filled by
open competition. The Union claimed that these positions should
be filled, on a seniority basis, from the non-permanent/temporary
operatives employed by the Corporation, and that persons recruited
to the advertised positions should be appointed as temporary
employees. In support of its claim the Union referred to the
recommendations of the 'code of practice on security of
employment'. In relation to the relevant recommendation
'Treatment of Non-Permanent Employees' clause 4.2 of the code
reads as follows:-
" It is recommended that, apart from the question of permanency,
non-permanent employees should otherwise enjoy conditions of
employment comparable with those of employees having permanent
status. Furthermore, apart from any overall limit on the number
of permanent posts, non-permanent employees should not be
prevented by measures such as the use of fixed term contracts etc.
from achieving permanent status or from achieving the service or
fulfilling other conditions necessary to be registered for
superannuation purposes or to come within the scope of worker
protection legislation. "
The Corporation responded by stating that the 'code of practice'
was not relevant in so far as recruitment of staff was concerned
and proceeded with its plan to recruit operatives to permanent
positions through open competition. As no agreement could be
reached at local level negotiations the Union referred the matter
concerning the future method of recruitment of permanent workers
by the Corporation to the conciliation service of the Labour Court
on 18th June, 1986. Following a conciliation conference, which
took place on 26th June, 1986, at which no further agreement was
reached, the matter was referred to the Labour Court for
investigation and recommendation. In the meantime the seven
permanent positions in question were filled, through open
competition, from the ranks of the non-permanent operatives in the
Corporation. The Court investigated the dispute on 30th
September, 1986, in Kilkenny.
Union's arguments:
4. (i) The new code of practice is quite specific, in
respect of 'Treatment of Non-Permanent Employees',
when it states in Clause 4(2):
"Apart from any overall limit on the number of
permanent posts, non-permanent employees should not
be prevented by measures such as the use of fixed
terms contracts etc. from achieving permanent
status. "
In fact the purpose and scope of the code is to
remove the ongoing concept of temporary employee and
to replace it with:-
(a) permanent and superannuated employees,
(b) non-permanent employees progressing towards
permanency, and
(c) a small number of fixed contract workers or
temporary workers recruited for specific
projects or annual or sick leave replacements.
The Corporation's action therefore, of appointing
people to permanent operative positions through open
competition is in breach of the provisions of the
code on the basis that this action could prevent
non-permanent and long-term temporary operatives from
advancing to permanent positions. Should the
Corporation continue to recruit permanent staff
through open competition the new code of practice
would be rendered practically meaningless.
(ii) The Union accepts that the bulk of those recruited by
the Corporation into permanent posts were temporary
employees. However, there is no guarantee that this
practice would continue in the future.
(iii) The Corporation's current recruitment policy is in
breach of the provisions of the 'code of practice'
agreed between the parties with effect from the 1st
April, 1986. Therefore, the Union is seeking that
future recruitment in the Corporation be in
accordance with the terms of this 'code of practice'.
Corporation's arguments:
5. (a) The Corporation's recruitment policy has always been
to recruit all permanent staff by open competition.
No valid reason exists why it should depart from this
policy in the future.
(b) In support of its claim that permanent posts be
filled from the temporary staff, and thereby altering
the Corporation's stated policy for staff
recruitment, the Union refers to the agreed 'Code of
practice on Security of employment'. However, this
code of practice is not relevant in this case as it
deals with security of employment and not with
recruitment. In this respect, a separate working
party is currently engaged on drawing up a report on
recruitment procedures.
(c) In all the circumstances of this case, the
Corporation's position should be upheld.
RECOMMENDATION:
6. The Court notes that the parties to this dispute have adopted
the Code of Practice on Security of Employment for Employee Grades
in Local Authorities with effect from 1st April, 1986. Paragraph
4.2. of that document refers to Treatment of Non-Permanent
Employees.
In the spirit of paragraph 4.2 the Court is of the view that it is