FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : KILKENNY COUNTY COUNCIL REPRESENTED BY THE LOCAL GOVERNMENT STAFF NEGOTIATIONS BOARD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Employer Member: Worker Member: |
1. Proposals Arising From Privatisation Of Refuse Collection Service
BACKGROUND:
2. The dispute before the Court concerns the Council's decision to privatise its refuse collection service with effect from 27th May, 1996.
The administrative areas of County Kilkenny is divided into four refuse collection areas with two of these being serviced by private contractors and the Council's crews servicing the other two areas.
The staffing of each of the two Council refuse units are 1 driver and 2 refuse operators. The Council also employ relief operatives (A and B), one of whom has acted continually following the retirement of a worker in May, 1995. The Council is offering the workers concerned as follows:-
(1). Redeployment to other work areas within the Council on the basis of existing rates of pay being red-circled.
(2). Compensation to be paid in respect of any loss of overtime at the rate of 1 1\2 times the average annual loss, the average to be calculated over 5 years.
(3). Redundancy on a voluntary basis.
The Union claims that the Council's decision to privatise its refuse collection service contravenes the EU Regulations governing Transfer of Undertakings and that this legislation protects the workers' pay and conditions of employment. The Union is seeking that the workers retain their gross earnings i.e. basic pay, overtime and allowances.
The matter was referred to the Labour Relations Commission. Conciliation conferences took place on 13th March, 1996 and 3rd April, 1996. As agreement could not be reached the dispute was referred to the Labour Court on 16th April, 1996 under Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 7th May, 1996.
UNION'S ARGUMENTS:
3. 1. The Council has made various attempts to privatise the refuse collection service. On each occasion discussions took place and agreement was reached which involved considerable concessions by the workers.
2. The Union was advised that members of the Council in considering the estimates would review the position of the refuse collection service. No proposals were put to the Union and no discussions took place on any proposals for change. The Union indicated that it was willing to negotiate with the Council in relation to changes in the service.
3. The Union is not objecting to the Council retaining the workers concerned in its employment. The Union is arguing that the Council in indemnifying the contractors against any claims by the staff must honour in full the terms of the Transfer of Undertakings legislation.
4. In the circumstances the Union is seeking that the Council transfers the workers to suitable alternative employment, to maintain the gross earnings of the staff transferred, to redeploy the workers within the Kilkenny County Council to newly created positions and to maintain the promotional outlets for grades lower than that of driver and refuse collection workers.
COMPANY'S ARGUMENTS:
4. 1. The Council has considered the issue of privatising the refuse collection service for many years. While it was acknowledged that the crews were doing a good job the Council was faced with the ongoing provision of a subsidy towards the service. The privatisation of the service will allow the Council meet a reduction of £115,000 in the budget as taken into account in the estimates.
2. Much of the County currently provided with a fortnightly service will now have a weekly service made available by these operators.
3. The Council has confirmed to the Union that existing Council employees in the service would be offered redeployment, at their existing rates of pay on a personal basis and be compensated in respect of any loss of overtime.
4. The Council cannot justify paying relief operator (A) further compensation. He has already received an award in this regard as per Appeal Decision No. AD1295. Compensation to relief operator (B) is not justified on the basis that his commitment to relief work amounts to approximately 27 days per year.
5. The Council's offer of redeployment to work areas within the Council at existing rates of pay on a personal basis is reasonable in the circumstances.
RECOMMENDATION:
In the first instance the Court considered the question raised by the Union as to the application of the terms of the Regulations on Transfer of Undertakings.
In this case a private operator is taking over the work of refuse collection whilst the employees who perform that work are remaining on the staff of the Council. The regulations are silent on the question of what happens in such a case. The only obligation on the Council would appear to be to consult the employees in relation to the implication of the transfer of the work and the measures envisaged for them. The Regulations do not find the Council is bound to preserve the existing conditions of the workers. This would be under their contracts of employment and any collective agreement.
The Court notes that the Council put forward proposals for dealing with the situation post transfer to a private contractor. The Union for its part referred the issue to the Labour Relations Commission and failing to reach agreement the parties agreed to refer to the Labour Court in the normal way.
The Court has considered the arguments put forward with regard to the industrial relations issue and recommends as follows:-
(a) That the Union accept the Council's offer that the employees concerned be redeployed on their existing rates of pay on a personal basis.
(b) That compensation for loss of overtime be paid at the rate of 18 months loss of overtime earnings averaged over the previous 5 years and reduced by overtime earned in the first 12 months in the redeployed area. To alleviate any hardship which may be incurred the Council should pay each employee affected an estimated 50% of what the final sum would be, one month after the transfer. This advance payment would be deducted from the final amount due.
(c) The Court supports the Council's position on Relief Operators A and B.
Signed on behalf of the Labour Court
Evelyn Owens
20th May, 1996______________________
F.B./D.TChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Fran Brennan, Court Secretary.