FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001, AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004 PARTIES : GALWAY CLINIC (REPRESENTED BY PURDY LEGAL SOLICITORS) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Referral from Labour Relations Commission under the Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004.
BACKGROUND:
2. The Galway Clinic is a private hospital employing approximately one hundred and fifty workers across a range of medical and support disciplines. The health facility is located at Doughiska on the outskirts of Galway City.
- The dispute before the Court concerns a claim by the Union, on behalf of its members, under the Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004, for the following:
a. Introduction of Grievance and Disciplinary Procedure
b. Redundancy Payments
c. Application of National Pay Agreements
d. Rates of Pay
e. Sick pay Scheme
UNION'S ARGUMENTS
3.1Introduction of Grievance and Disciplinary Procedure
- The Union contends that the employers internal policy in resolving individual grievances does not comply with the provisions of S.I. 146 and it does not provide for an individual to request Trade Union representation at any stage of a grievance in its procedure. The Union is seeking that the employer put in place an agreeable disciplinary and grievance procedure, which conforms to the general provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. No146 of 2000). Consistent with the Code the procedure should provide for Trade Union representation in processing individual grievances and disciplinary matters, where a worker wishes to avail of such representation.
2.Redundancy payments
- The Union contends that a number of redundancies took place over the summer period without the employer adhering to proper protocol. The Union is seeking that the employer put in place fair procedures and due process for employees to avail of the right to be represented when dismissal arises. The Union is also seeking that the employer offer of a statutory redundancy to those recently dismissed be enhanced to reflect six weeks pay per year of service or pro-rata where less than two years service exists.
3.Application of National Pay Agreements
- The Union contends that the employer was not willing to pay the last instalment of Sustaining Progress and is now seeking a recommendation that the employer complies with the full terms of the National Pay Agreements by backdating all awards to their correct implementation date.
- The Union contends that for those workers at the employment who are traditionally linked to public sector comparable rates of pay are now failing to benefit from incremental progression. The Union is requesting that the Court recommend the protection of pay rates for nurses equal to that which exists with HSE comparable grades. As regards clerical and administration workers, the Union claims that the rates of pay for these workers are significantally out of line compared to other private and public hospitals in relation to the support staff, the employer also refuses to pay any premium, no overtime is paid and a flat rate of pay applied for working bank holidays and Sundays.
- The Union contends that the employer sets out the new terms of the Company Sick Leave Scheme in the Company handbook and notes that there is significant variances from the original scheme and the amended version. The Union members do not accept a change in their contract of employment which would result in a sick pay scheme offering less protection while out sick.
CLINIC'S ARGUMENTS
4.1Introduction of Grievance and Disciplinary Procedure
The Galway Clinic contends that it already has a grievance and disciplinary procedure, which complies totally with S.I.146.
2.Redundancy payments
The Galway Clinics position in relation to Redundancy Payments is that there is no valid trade dispute before the Court as the dispute refers to previous employees and the Clinic contends that the Court lacks the jurisdiction to hear the case as there is no trade dispute as properly defined by the Labour Court and the High Court. The Clinic further contends that the amounts given were fair and reasonable and in keeping with comparable employments. To offer additional payments above those already granted would leave the Clinic with no alternative but to find additional savings elsewhere in the business.
3.Application of National Pay Agreements
- The Galway Clinics position is that it never intimated, agreed of inferred that it would be party to the National Wage Agreement Towards 2016 or to its predecessor Sustaining Progress. The Clinic further contends that it is neither unionised, in the formal sense, in that there is no formal recognition of the Trade Union and/or no comprehensive agreement nor is the Clinic a member of any body party to the agreement. The terms of all National Agreements are negotiated voluntarily, therefore where one party does not consent to the implementation of the agreement then clearly there is no scope for imposition, including by the Labour Court.
- 4.Rates of Pay
- The Galway Clinics position is that the HSE and /or existing private hospitals are not valid comparators and do not meet the test of comparable employment as per the IBOA case. Comparable employments for this group extend to private industry as a whole and cannot be limited to HSE and other private Hospitals. Clerical, Admin. and other support staff can market their skills across all industries both public and private. The Union has not demonstrated that their basic pay is out of line with comparable industries.
5.Sick Pay Scheme.
The Galway Clinics position is that when the Clinic began operations in 2004 it introduced a most generous Sick Pay Scheme for all employees. While the changes were necessary to help correct the financial difficulties in which the Clinic found (and still finds) itself, Management is fully aware of the issues that the reduction in terms has caused for staff. The Clinic intends to consult locally with its employees with the objective of re-adjusting the scheme to provide more favourable terms for all staff since the financial position of the Clinic becomes clearer, hopefully no later than March 2007.
RECOMMENDATION:
Preliminary Issue
The Union’s claims were referred to the Court pursuant to s2 of the Industrial Relations (Amendment) Act 2001, as amended (the Act). The Galway Clinic (hereinafter the Employer) submitted that in so far as the claims related to staff made redundant in 2006 they could not form the subject matter of a trade dispute within the meaning of the Act. In support of this submission the Employer referred to the definition of the term “trade dispute” contained at s 3 of the Industrial Relations Act 1946. This definition was adopted by this Court inIMPACT v Ryanair[2005] 16 ELR 99, and approved by Hanna J. inRyanair v The Labour Court[2006] 17 ELR 1 as the appropriate definition of that term for the purposes of the Act. That definition provides as follows: -
- "trade dispute" means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person;
The Solicitor for the Employer also relied upon the definition of the term “worker” contained at s4 of the Industrial Relations Act 1946, which, in relevant part, is as follows: -
- In this Act (except Part VI) the word "worker" means any person of the age of fourteen years or upwards who has entered into or works under a contract with an employer whether the contract be for manual labour, clerical work, or otherwise, be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour, ……….”
The Court can see no merit in these submissions for the following reasons: -
Section 4 of the Industrial Relations Act 1946 was repealed by s7 of the Industrial Relations Act 1990. It was, however, re-enacted with amendments which are not relevant for the purposes of the instant case. The appropriate definition of the term “worker” is now contained at s23 of the Act of 1990.
The definition includes a person who has entered into or works under a contract. The provision is disjunctive and includes a person who has entered in to a contract as well as a person who currently works under such a contract. A person who is dismissed is one who has entered into a contract of the type referred to in the definition and is therefore encompassed by that definition
A trade dispute can exist concerning the employment or non-employment of any person. In the instant case there is a dispute between SIPTU, which is an organisation representing workers and the Employer and the dispute concerns the dismissal of persons.
In a line of authorities it has been held that a person who has been lawfully dismissed and is temporally out of work does not cease to be a worker for the purpose of the law relating to trade disputes. (SeeFerguson v O’Gorman[1937] I.R. 620,Quigley v Beirne[1955] I.R. 62,Silver Tassie Co Ltd v Cleary92 ILTR 27). A definitive statement of the law in this regard is contained in the Judgment of O’Higgins C.J inGoulding Chemicals v Bolger[1977] I.R. 211, wherein the Chief Justice said the following: -
It is true that the definition of "workmen" who may engage in a trade dispute is "all persons employed in trade or industry." In my view "employed" here does not mean in actual present employment but rather refers to the occupation or way of life of those who are to be regarded as "workmen." Any other meaning could have the effect of withdrawing the protection of the Act from workmen by the simple device of dismissing them and this would have its maximum effect at a time of general unemployment. In Ferguson v O'Gorman ((1937) IR 620) Meredith J, in relation to the issue as to whether the defendants were competent to raise a trade dispute (an issue which was not involved in the hearing of the appeal in that case)- "A workman does not cease to be a workman because he has been dismissed and is out of employment or has been forced to take up other work." I concur with this view.
This approach was subsequently adopted by Mc William J. inJ Bradburry Ltd. v Duffy[1984] J.I.S.L.L. 86.
The Expressions “worker” (as used in the Act of 1990) and “workman” (as used in the now repealed Trade Disputes Act 1906) are essentially coterminous. In enacting a definition of the term worker at s23 of the 1990 Act, the Oireachtas must have been aware of the construction which had been placed on the corresponding term “workman” as used in the earlier statute. On the doctrine of parliamentary endorsement it is to be assumed that a similar approach in applying the provision now under consideration was intended (on this point see the Judgment of Griffen J inCronin v Youghal Carpets (Yarns)IR 312.
A dispute concerning dismissal has been held to come within the ambit of the expression “employment or non-employment” for the purpose of the Trade Disputes Act 1906. This was again made clear by O’Higgins CJ inGoulding Chemicals v Bolgerwhere he had this to say in overruling an earlier decision of Overend J inDoran v Lennon[1945] IR 315 to the contrary: -
- While the facts of Doran v Lennon ((1945) IR 315) are somewhat peculiar and special, it does appear from these facts and from the passage of his judgment which I have quoted that Overend J was of the opinion that a lawful dismissal precluded the raising of a trade dispute. I cannot agree with this view and I think it is erroneous. The definition of "trade dispute" in the Trade Disputes Act, 1906, permits of no such limitation and, indeed, is sufficiently wide and general to include any dispute between employers and workmen provided only it is connected with the employment or non-employment, or the terms of employment or the conditions of labour of any person. Such a definition can comprehend a dispute as to whether an employer ought to have exercised his contractual right to terminate a particular employment or employments. Such dispute would clearly be "connected with" the employment of the persons in question or with their non-employment. The fact that the termination of the employment or employments in question was lawful and for good and substantial reasons appears to me to be completely irrelevant once such termination led to a dispute as to whether the employer should have acted as he did.
Also, inCleary v Coffey, High Court, Unreported, McWilliam J, 30th November 1979, it was held that a dispute over a claimed higher payment than that provided for by the Redundancy Payments Acts was nonetheless a trade dispute.
These authorities relate to cases in which the availability of immunities under the Trade Disputes Act 1906 to former employees who were engaged in picketing their former employer’s premises was at issue. They are nonetheless relevant to the instant case. They show that workers who have been dismissed can lawfully go on strike or engage in industrial action in pursuance of demands arising from their dismissal. Nothing in Part II of the Act of 1990 has changed that position.
The purpose of the Industrial Relations Acts 1946 –2004 is to provide for the orderly resolution of trade disputes without recourse to coercive action. Since its inception the Court has accepted that a person who is dismissed remains a worker and it has regularly investigated disputes concerning dismissal including dismissals grounded on redundancy. It is inconceivable that in enacting s23 of the Industrial Relations Act 1990, the Oireachtas could have intended to exclude from the ambit of that section a person who was dismissed and thus deprive the Court (or a Rights Commissioner under the Industrial Relations Act 1969) of jurisdiction to investigate a dispute concerning the dismissal while leaving unaffected the right of such persons to lawfully engage in a strike or other industrial action in furtherance of their dispute.
Further support for this conclusion can be found in s 9 of the 1990 Act. This section provides that in disputes involving an individual worker, including disputes concerning dismissal, reference of the dispute to,inter alia,a Rights Commissioner or the Labour Court is a conditions precedent to the availability of the immunities provided by ss10, 11, and 12 of that Act. This would amount to a patent absurdity if, as the Employer contended, the Court has no jurisdiction to investigate a dispute involving a dismissal.
For all of the above reasons the Court is satisfied that it has jurisdiction to investigate the dispute in so far as it relates to redundancies. The Court is further satisfied that all of the conditions specified at s2(1) of the Act have been met and that it should proceed to investigate the totality of the dispute referred to it by the Union.
Substantive Issues.
The Court has given careful consideration to the submissions of the parties on the substantive issues in dispute. The Union submitted that the rates of pay and other conditions of employed of those associated with these claims are out of line with those of other private hospitals. They contended that in other private hospitals (details were provided to the Court) pay and conditions are aligned to the public sector. The Employer contended that in so far as clerical or administrative workers are concerned the appropriate comparator is the average pay and conditions applicable to workers engaged in similar activity in industry generally.
For the purpose of drawing fair comparison in pay and conditions of employment it is normal practice to have regard to the nature of the business carried on by the employer rather that to the occupational designation of the workers concerned. Accordingly, the Court is satisfied that the appropriate comparators, for the purpose of these claims, are other private hospitals providing a similar service to that provided by the employer in this case. In that regard the Court is satisfied, on the information before it, that the preponderance of private hospitals provide rates of pay and conditions of employment to all staff which are not less favourable than the rates negotiated between the HSE and the relevant trade unions in respect of public hospitals. In formulating the recommendations which follow the Court has taken account of the rates of pay and other conditions of employment so provided, together with all other relevant factors including the economic and commercial circumstances of the employment.
Pay
The Court recommends that, in line with the practice in other similar private hospitals, all staff associated with these claims should be placed on a pay scale equivalent to that applicable to corresponding grades in the Public Health Service. These rates should take effect from 1st January 2007. Should difficulties arise in relation to the assimilation of staff on to the appropriate pay scale the parties should refer the matter back to the Advisory Service of the LRC, or to another agreed facilitator. Workers should be placed on the point of the scale appropriate to their actual service in the employment.
Redundancy
The Court recommends that staff made redundant in 2006 should receive four weeks pay per year of service exclusive of statutory entitlements where applicable. The Court further recommends that in the absence of other stated objective criteria future selection for redundancy should be on the basis of LIFO.
Sick Leave
The sick-leave entitlement of all staff associated with these claims should be in line with that provided for by the Employer and set out in the handbook furnished to staff in March 2004, namely
•Up to 100% of pay for the first three months
•Up to 75% for next three months
•Up to 50% for the following six months.
The other terms of the scheme, as set out in the March 2004 handbook, should apply.
Grievance and Disciplinary Procedures
The Union claimed that the current internal procedures for the processing of issues relating to individual grievances and disciplinary matters are inadequate in that they do not provide for representation of employees by a trade union in appropriate cases.
The employer informed the Court that it has reviewed its internal procedures having regard to the provisions of the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). The Court recommends that the employer proceed accordingly. Any dispute concerning the compatibility of the revised internal procedures with the provisions of the Code of Practice should be processed through the procedures of Section 43 (1) of the Industrial Relations Act 1990.
Other issues.
While the Court has not been furnished with any independent evidence of the financial circumstances of the employment it does accept that it has experienced difficulties in that regard. This has been taken into account by the Court in formulating these recommendations and in particular in not providing for any retrospection in the pay structure recommended beyond 1st January 2007, or in the sick leave recommended. Accordingly the Court intends that the above recommendations be accepted in full settlement of all issues referred to the Court by the Union.
Implementation
Save where otherwise indicated this recommendation should be implemented within one month of the date on which it is issued.
Signed on behalf of the Labour Court
Kevin Duffy
18th_January, 2007______________________
JBChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.