FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : TEAGASC - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Mr Nash |
1. Permanency.
BACKGROUND:
2. The dispute concerns a claim by the Union to have a number of Advisors, (approximately 75, working in Rural Environment Protection Scheme (REPS) and 15 Joint Industry Programme Personnel) who are on fixed term contracts ( of 5 years duration) to be made permanent after more than 2 years continuous service. Management rejected this claim stating that by their nature REPS represents objective grounds for offering fixed terms contracts rather than permanency. Objective grounds are: the duration of the REPS scheme; the level of the Organisation market share; the funding derived from REPS/Joint Industry Programmes and associated Departmental approval.
The 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 29th September, 2004 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 25th November, 2004.
UNION'S ARGUMENTS:
3.1 In a similar situation, following Labour Court Recommendation LCR No. 16238 in 1999 and subsequent negotiations which led to 25 workers becoming permanent, the Union maintains that this agreement worked well at the time. Its implementation has complemented the workings of the Advisory Service.
2. Management have previously acknowledged the anomaly of having a significant percentage of workers involved in core work on fixed term contracts.
3. Temporary and permanent staff have the same terms and conditions of employment, including pensions. There is no cost implications or increase in payroll by Management in offering permanent contracts to these workers.
4.The recently enactedProtection of Employees (Fixed Term Work) Act 2003, indicates a relevant time span for fixed term contracts and further outlaws discrimination between contract workers and permanent workers.
5. The work and functions to sustain permanent REPS advisers is currently there up to 2009 (REPS 3).
6. Should Management offer a further 5 year fixed contract to the workers they will be in breach of Section 9, subsection (1) of theProtection of Employees (Fixed Term Work) Act 2003.
MANAGEMENT'S ARGUMENTS:
4.1 The Union's claim for permanent contracts after a period of two years is unrealistic and when compared to the rights of other workers cannot be justified.
2. The REPS Scheme is not a permanent programme. It was originally approved for a limited period. This was extended to REPS 2 and last year REPS 3 was approved. REPS 3 will also have a limited life (2009).
3. The nature of REPS represents objective grounds for offering fixed terms contracts rather than permanency.
4. There is no guarantee that Management will always need to procure the same level of service from Advisors as at present. The posts are approved on the basis that they would continue to generate sufficient contract income and are self financing. If the situation changes then contracts may have to be terminated.
5. Workers have sufficient opportunity to secure permanent employment with the Organisation (a) they are prepared to move to locations where permanent vacancies exist and (b) being successful in open competitions for advisory and training post. Management must treat all applicants for permanent posts in a fair and equitable manner and cannot discriminate in favour of contract staff.
6. In keeping with the Government's Directive on public sector numbers, Management are currently filling only one in three vacancies which arise in permanent posts.
RECOMMENDATION:
The case before the Court concerns the Union's claim for permanent status for those employees who have completed two years service on temporary contracts. Teagasc state that due to the nature of the work, the claimants who are on fixed term contracts, regardless of their length of service, must compete for available permanent posts through open competition in order to gain permanency.
Having considered the views of the parties expressed in their oral and written submissions, the Court recommends that after four years of continuous employment, temporary employees should be considered as having permanent status in the organisation, unless it can be shown that there are objective grounds why that period should be extended further.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th December, 2004______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.