FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(2), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICES EXECUTIVE - WEST - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. The Union's Claim is that the HSE-West by using Agency Workers rather than direct employees, without the Agreement of IMPACT, is in breach of National Agreements (Sustaining Progress and Towards 2016).
BACKGROUND:
2. The dispute before the Court concerns the outsourcing of work through the engagement of agency workers by HSE-West in University College Hospital, Galway (UCHG) in respect of Clerical / Administrative posts and in Mayo PCCC and Roscommon PCCC in respect of Home Help posts without consultation or agreement with the Union. The Union is seeking the Court to recommend 1. That the HSE-West by using agency workers rather than direct employees, without the agreement of IMPACT , is in breach of National Agreements (Sustaining Progress and Towards 2016),and 2. That the workers involved be converted to direct employee status.
The dispute was referred to the Labour Court on the 23rd January, 2007 in accordance with Section 20(2) of the Industrial Relations Act, 1969 and both parties agreed to be bound by the Recommendation. A Labour Court hearing took place on the 30th May, 2007
UNION'S ARGUMENTS:
3.1 The Union became aware in 2004 that UCHG was employing agency staff to carry out work performed by HSE Clerical/ Administrative posts in the hospital. The Union outlined to management the seriousness of their actions advising them that no agreement was in place at local or national level for the provision of agency staff to be employed to undertake clerical/administrative duties within the Health Services.
2. Management did inform the Union that as a result of the cutbacks introduced by the Department of Health in 2002 the employment of agency staff was a short-term measure as they were in the process of seeking approval to increase the number of "whole time equivalents" (WTEs) at the hospital thus allowing them to recruit clerical / administrative staff directly. Despite mention on numerous occasions at meetings over the next number of months the practice continued with Management in fact increasing the number of agency staff at the hospital.
3. The Union contends that throughout this dispute the Workers have taken a very disciplined approach to the issue. Unlike the HSE the Union has observed all agreements in respect of processing issues. The Union has adhered strictly to the terms of Sustaining Progress and Torwards 2016 while experiencing total indifference by the employer to the same agreements.
4. The costs associated with employing agency staff incurs an additional 21% over and above the costs associated with direct hires due to value added tax being charged by the agency. This does not appear to give value for money to the taxpayer.
5. While agency staff are in effect working alongside colleagues employed by the HSE-West and carrying out the same duties the net result is that they are severely disadvantaged because of their employment status.
MANAGEMENT'S ARGUMENTS:
4.1 In 2002 following an embargo on public sector recruitment, the whole-time equivalent (WTE) ceiling for Galway University Hospital was adjusted downwards by the Department of Health and Children by a total of 150 WTEs This resulted in the loss of 150 posts which were approved and funded although not filled at the time of the ceiling adjustment.
2. In the light of the WTE ceiling reduction and the loss of the 150 posts, Management opted to engage clerical and clinical support staff and payroll them through an employment agency. The current clerical WTE employed through the agency is 70.
3. The staff concerned maintain services for clinics, wards bed, management/admissions and other support areas. These posts are critical in maintaining vital hospital services and any reduction in these numbers would result in the curtailment of existing services.
4. Management claims that the use of the agency has always been considered an interim measure to ensure the provision of essential services to the public and until such time as the overall WTE position could be rectified. It was never the intention that such arrangements would be permanent and Management has continuously sought to have these posts converted to directly contracted staff.
5. Previous and current National Agreements have included provisions for the outsourcing of work or the recruitment of temporary staff. Management contends that they never suggested that use of staff from an employment agency was anything other than a temporary arrangement and did not represent the permanent outsourcing of work.
6. In 2005 the Hospital made an application to the HSE at national level in relation to agency staff seeking an increase in the WTE ceiling to allow for the conversion of these posts to directly contracted HSE employees. That application is still being considered In the meantime Management does not wish to take any action that would put services at risk or affect the employment of the staff remunerated through the employment agency. The concession of this claim may also lead to further claims for other grades of staff engaged through the agency (mainly healthcare assistants) totalling a further 23.50 WTEs.
RECOMMENDATION:
The case before the Court under Section 20(2) of the Industrial Relations Act, 1969 concerns the Union’s claim regarding the outsourcing of work by the engagement of agency workers by HSE-West in breach of the terms ofSustaining ProgressandTowards 2016.
The Union maintained that by outsourcing clerical and administrative work to agency workers rather than employing direct workers in University College Hospital Galway (UCHG), Mayo Primary Community and Continuing Care (PCCC) and in Roscommon PCCC, Management was in breach of the National Agreements. Furthermore, it held that Management had not engaged in a consultation process in line with the terms of paragraphs 21.9 and 21.12 ofSustaining Progressand paragraphs 28.9 and 28.13 ofTowards 2016.
Management at UCHG explained that when the Public Sector embargo on recruitment was implemented in 2002, it lost the opportunity to fill 150 approved posts, as they had not been filled at the time of the Whole Time Equivalent (WTE) ceiling adjustment. This had implications whereby with the appointment of new Consultant posts, there was insufficient WTE provision for secretarial and other clinical support. Therefore, it became necessary in order to deliver the service required to engage clerical and clinical support staff through an employment agency on an interim basis and in those circumstances it was not possible for Management to enter into a consultation process with the Union.
Having considered the views of the parties expressed in their oral and written submissions, the Court is of the view that the lack of prior consultation with the Union was in breach of the Agreements. However, it is apparent to the Court that both parties are of the view that the staffing levels are insufficient to meet the demands of the service. This situation was compounded by the timing of the Public Sector embargo, which had had serious implications for HSE-West, not just in UCHG but also in Mayo PCCC and Roscommon PCCC.
The Court is of the view that paragraph 21 ofSustaining Progressand paragraph 28 ofTowards 2016were intended to allow cover on a temporary basis in emergency situations whereas the current situation in HSE-West is an on-going issue which needs to be addressed in order to ensure delivery of the service. The engagement of agency workers in such circumstances diminishes the value of those terms of the Agreements.
The Court recommends that HSE-West must restore the staffing levels to the pre-embargo levels prior to the WTE ceiling being reduced without the use of agency workers. The Union’s claim before the Court seeks to convert the agency workers into direct employees. The Court recommends that the normal competition process should be utilised to restore the numbers and the agency workers should be facilitated to process their applications accordingly.
This decision of the Court is given under Section 20(2) of the Industrial Relations Act, 1969, and is binding on both parties.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th_June, 2007______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.