FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : WORK 4U LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Retention of FÁS Grade 10 (Officer Level 2) salary scale.
BACKGROUND:
2. Work 4 U Ltd is a voluntary agency administering a project aimed at assisting adults with disabilities access employment. The project is funded by FÁS under the National Development Plan 2000 to 2006 and is based in Ballymun, Dublin. The Company took over management of the supported employment in January 2005. This was previously provided by the North Dublin Supported Employment Programme Ltd, the Ballymun Partnership, and the Central Remedial Clinic prior to that.
- The dispute before the Court concerns a claim by the Union on behalf of eight of its members employed on the project since March 2001. The Union contends that its members, pursuant to commitments freely made to staff under the European Communities ( Safeguarding of Employees Rights on Transfer of Undertakings) Regulations 2003 - S.I No. 131 of 2003, are seeking the retention of their payscale at FÁS Grade 10 (Officer Level 2) as set out in their existing contracts of employment and payment of annual increments due on this existing payscale with effect from October, 2004, 1st January, 2005, and 1st January, 2006, in accordance with their contracts of employment.
The Company contends that the service is funded in its entirety by FÁS and FÁS insists that the service is run in accordance with its guidelines. The NDSEP managed the project previously and it stated in their contract with FÁS that the programme would employ ten Job Coaches. In 2004, the NDSEP decided to convert the Job Coaches posts into Mediator positions, which was clearly in breach of FÁS guidelines and the agreed contract. Approval for these contracts was not sought and if it had been it would have been refused. It was as a result of this that the NDSEP was not awarded the contract by FÁS in 2005. Work 4 U Ltd has sought to bring the programme back in line with FÁS guidelines.- 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 25th November, 2005, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 12th April, 2006.
- 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 25th November, 2005, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 12th April, 2006.
3. 1. The existing superior payscale and contracts were freely granted and should be honoured and increments paid in full. The position of FÁS is unsustainable under the European Union legislation.
2. FÁS's position of threatening to "pull the programme unless" shows a disgraceful approach to workers merely seeking their statutory rights through the Industrial Relations procedures of this State.
3. Existing superior payscales should be benchmarked in line with FÁS Grade 10 (Officer Level 2). Recognition should be given to the upheaval and stress caused to staff due to the transfer of the programme moving to new premises.
COMPANY'S ARGUMENTS:
4. 1. The Company took over the contract on the 1st January, 2005, and since then it has tried to adhere to the guidelines set down in their contract with FÁS to try to ensure that it retains its contract. The Company's predecessor, the Ballymun Partnership broke the terms of its contract with FÁS and issued the individuals concerned with contracts, which they were not entitled to do.
2. The implications for FÁS are serious. They have approximately twenty three similar organisations around the country and approximately two hundred Job Coaches, who are all on the job scale rates of pay and if these individuals are offered the Mediator scales, it will set a precedent. The Company has been informed that if it break the terms of its contract, the contract may well be terminated.
3. All employees recruited since January 1st 2005 have been placed on the correct job scale. The Company now has a situation where it has people doing the same job while on different scales. If the individuals concerned were to accept that they should be on the Job Coach Scale, the Company would look at moving them to higher increments on the Job Coach Scale
RECOMMENDATION:
It is accepted that the transfer of the staff to their current employer was covered by the European Communities (Safeguarding of Employees Rights on Transfer of Undertaking) Regulations 2003 S.I No. 131 of 2003. In these circumstances those who transferred are entitled to retain the terms of their contracts of employment which were carried over from their previous employer.
The Court can see no basis upon which it could recommend that the employer reduce the Claimants' pay below the rate provided for by their contracts. On the clear facts of the case, if the employer were to do so it would be acting in contravention of the Claimants' statutory rights. Accordingly, while recognising the current employer's difficulty in the circumstances, the Court cannot issue a Recommendation, the implementation of which would involve illegality.
The Court recommends that the employer should continue to honour the contracts of employment carried forward by operation of the above-mentioned Statutory Instrument unless and until the parties voluntarily agree to amend the relevant conditions. On that basis the Union's claim for the continued grading of the Claimants at FÁS Grade 10 (Officer Level 2) should be conceded.
Signed on behalf of the Labour Court
Kevin Duffy
13th_April, 2006______________________
JO'CChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.