FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 26(5), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HEALTH SERVICE EMPLOYERS' AGENCY (HSEA) - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Pay claim.
BACKGROUND:
2. The Labour Relations Commission held parallel talks with the HSEA, SIPTU and IMPACT on Saturday, the 19th of January, 2002. However, attempts to resolve the dispute were unsuccessful.
The Labour Court indicated its willingness to investigate the dispute under Section 26(5) of the Industrial Relations Act, 1990, subject to a deferral of strike action. While SIPTU agreed to defer strike action pending a Labour Court hearing, IMPACT were unable to respond positively to the Court's request.
On Wednesday, the 23rd of January, 2002, the National Implementation Body (NIB) issued a statement which IMPACT indicated allowed it to suspend strike action pending a Labour Court hearing. The Court investigated the dispute on Monday, the 28th of January, 2002.
IMPACT is seeking the application of Department of Health and Children circular 39/2001 to all Houseparents and Assistant Houseparents retrospective to the 1st of January, 2001. The Union claims that a statement made by the National Implementation Body on Tuesday, the 22nd of January, 2002, recorded the employers' acknowledgement that a single category of Houseparent/Assistant Houseparent exists.
Management's position is that the deal concluded in April, 2001, catered exclusively for those employed in the childcare sector and that this was understood by the Union. Any perceived grievances regarding the implications for the remaining group of Houseparents and Assistant Houseparent represented by IMPACT can only be dealt with through the Benchmarking process.
UNION'S ARGUMENTS:
3. 1. The titles of "Child Care Worker"; "Care Worker"; "Houseparent"; and "Assistant Houseparent" have always been interchangeable. This has been accepted by all sides in any discussions, negotiations and agreements.
2. There is one single category of Houseparent/Assistant Houseparent that, regardless of the setting, has always shared a grading structure, qualification requirements, pay scales, and conditions of employment.
3. The resolution of this dispute lies within the ambit of the Programme for Competitiveness and Work (PCW) and not the Benchmarking process.
4. IMPACT has never discussed, or agreed to the possibility of establishing grading, pay and qualifications arrangements for Houseparents and Assistant Houseparents in the settings of intellectual disability, sensory disability, and residential children's homes and community child care.
5. Houseparents and Assistant Houseparents in all three sectors have historically shared, and should continue to share common pay, grading and qualification requirements. Any alteration to this would effectively establish a two-tier system in which people with intellectual disabilities received a second-rate service characterised by poorer qualification requirements and exacerbate staff recruitment and retention difficulties.
MANAGEMENT'S ARGUMENTS:
4. 1. The settlement of the paramedics strike in 1997 came about following Labour Court Recommendation LCR15515. This recommendation, in addition to granting pay increases, proposed the establishment of an Expert Group to examine in more detail a number of outstanding issues which had been raised during the strike and the Labour Court investigation.
2. In April 2000 the Expert Group issued its report which recommended that Child Care Workers be afforded formal professional status and further recommended that a joint staff/management committee be established to deal with issues arising. The report contains no explicit reference to the Intellectual Disability sector. The Union were aware that this deal did not apply to the Intellectual Disability sector workers.
3. The Department of Finance sanctioned the agreement between the Department of Health and Children and IMPACT on the clear understanding that the agreement reached applied only to the Child Care sector.
4. Management has advised IMPACT that the forum to pursue its claim for extension of the deal to the Intellectual Disability sector is through the Benchmarking process.
5. The Benchmarking body should be allowed to conclude its business and issue its report on the grades concerned in accordance with the terms of reference given to that body by the social partners. Any other approach would seriously damage the integrity of the Benchmarking process and would inevitably lead to immediate repercussive claims from other Unions, many of whom are reluctant participants in the Benchmarking process.
RECOMMENDATION:
Background:
Labour Court Recommendation No.15515 included a proposal, subsequently implemented, to have an Expert Group established to examine in more detail a number of outstanding issues that had arisen during the Court’s investigation.
The Court recommended that the Expert Group should "examine and report on the changes that have taken place in the relevant professions and in this context to address the anomalies within the group.” It is also recommended that the terms of reference should include such items as problems relating to recruitment and retention, training and educational requirements, management structure and development within each profession and for delivery of service.
The Expert Group’s report was published in April 2000. In its report, in addition to making recommendations on payments and conditions, the Expert Group recommended that "Child Care workers be awarded formal professional status and as a consequence recruitment of non- qualified personnel must eventually cease". The Expert Group further recommended that a Joint Committee be established with terms of reference "to deal with issues arising from recognition of the autonomy of the Child Care workers profession".
The heading in Chapter 4 of the Expert Group’s report, Child Care Workers, has been the subject of heated debate in this dispute. The Management side argue that is was specifically referring to the child care workers and did not include the intellectual disability sector workers, while the Union are adamant that the Expert Group made no distinction between the Houseparents, Assistant Houseparents and Training Houseparent, in the Intellectually Disabled residential children’s homes, community care or sensory disability settings.
It is clear that a major difference of opinion exists between the Management and the Union in relation to the term Child Care. The Union position is that this is a generic term and covers the entire category, while Management claim this referred to a specific group operating in a particular area.
Agreement:
The dispute before the Court to a large extent centres around the discussions that took place subsequent to the publishing of the Expert Report and the issuing of Health Care Circular Letter 39/2001.
The Management case is that the Child Care workers agreement arose as a result of "severe and intense difficulties being experienced by this sector in late 2000 and early 2001. The Child Care Service was at crisis point with public confidence eroded." Action was taken on an "exceptional interim basis in advance of the completion of the work of the Joint Committee in order to prevent a collapse of the Child Care services and accelerate its professionalism". This resulted in a new interim staffing structure of Trainee Child Care Worker, Child Care Worker, Child Care Leader and Manager (in residential settings).
Management’s position is that in putting forward the new structure, with qualification requirements, it believed it had a deal with the Union, to split the Houseparent and Assistant Houseparent grades and to have the jobs reviewed by the Benchmarking body, with the possibility that they may come back together again at that stage.
They argue that the Expert Group Report recommendations that Child Care workers be afforded formal professional status was "specific to Child Care services and did not include the Intellectual Disability Sector". Management claim that the Union was fully aware that the restructuring related to a specific group of workers and did not include the Intellectual Disability workers.
The Union argued that it would never have agreed to a deal to break up the group. It argues that Circular letter 39/2001 confirms its view of the agreement. The Union position is that the Circular produced in April 2001 by the Management clearly indicated that the increases were for all and it was only when they discovered the actual cost of the agreement that a circular was sent out to say this was not to apply in the Intellectual Disability sector.
Verbal and written submissions have been made by both sides to support their respective positions.
Having considered all of the information before it the Labour Court is unable to decide on the validity of the two conflicting positions taken by the Union and the Management. There is evidence provided by both sides to support their arguments and documents that could support either argument. There is also a lack of clarity in relation to the use of the term Child Care as to whether this was specifically meant to apply to the group which had been broken away, or whether it was meant to cover all personal. The Court is unable to decide the merits of each side’s arguments in relation to whether there was an agreement to split the Group.
Summary:
Management have acknowledged the historical pay relationship between Houseparents and Assistant Houseparents in the Intellectual Disability Area and those in the Child Care area and as between Care Assistants and Assistant Houseparents in the Intellectual Disability Area.
It is clear that the parties have conflicting interpretations of the scope and operation of the Department of Health and Children Circular 39/2001.
It is the Union’s submission that adjustments were freely agreed in respect of the career category, of which the group now in dispute form part. On this basis they argue that the dispute is concerned with the implementation of a concluded agreement.
Management argue that the Child Care Workers agreement arose as a result of serious difficulties being experienced in the sector, to prevent the collapse of the Child Care Services and to accelerate its professionalism. This resulted in the new interim staffing structure that does not include the Intellectual Disability sector.
It would appear that an examination with a view to a similar professionalisation of the Intellectual Disability Area was not undertaken.
For its part, the Management also contend that the agreement that led to the adjustments in respect of those involved in Child Care had the effect of severing that group, for pay purposes, from the generality of the care worker category. Nonetheless, it would appear that the Management are not opposed to the ultimate restoration of parity between the groups (and the restoration of pay relationships). They contend, however, that this can only occur through the Benchmarking Process.
In the context of the positions taken by the parties it appears to the Court that the net issue in dispute relates not to the interpretation of PPF, but to the scope of what was considered by the group who recommended adjustments in the case of Child Care Services.
The Expert Group in its report recommended that a Joint Committee be established whose terms of reference should be “to deal with issues arising from recognition of the autonomy of the Child Care workers profession.”
The Court believes the issue in dispute falls into this category.
Recommendation:
The Court, therefore, having considered all of the issues involved in this case, recommends that the Joint Committee be requested to examine the role of Intellectual Disability Workers, in the same manner as it did the group it recommended for change, with a view to deciding if the same process of professionalism is appropriate. If the parties at that stage fail to reach an agreement they can refer back to the Court for a definitive recommendation.
Signed on behalf of the Labour Court
Finbarr Flood
1st February, 2002______________________
LW/BRChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Larry Wisely, Court Secretary.