FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(2), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL CONSUMER AGENCY/DEPARTMENT ENTERPRISE, TRADE & EMPLOYMENT - AND - CIVIL & PUBLIC SERVICES' UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Contracting-out of call centre.
BACKGROUND:
2. The Union represents Clerical and Staff Officers at the National Consumer Agency (NCA) an independent statutory body established under the Consumer Protection Act, the Board of which is appointed by the Minister for Enterprise, Trade and Employment. The NCA was established in statute on 1st of May, 2007, on which date the work and responsibilities of the former Office of the Director Consumer Affairs (ODCA) was subsumed into the new Agency. Prior to its integration into the NCA, the ODCA, as part of the functions of its Communications Unit, had operated a help-line/call-centre staffed by 8/9 Clerical Officers.
In Autumn 2005, following the decision to establish the NCA, an interim NCA Board was formed. The Union's case is that in late 2005/early 2006 the interim NCA Board decided to outsource information provision to a private-sector call centre (Abtran) in Cork. The employer claims that the ODCA management, which was charged with working with the Interim Board, was unable to facilitate this work within its existing Communications Unit as it believed that the Unit had insufficient resources to handle the workload. The Union objected to the decision and sought negotiations through existing Industrial Relations (IR) structures. It advised the Department that the interim NCA Board was constrained by Section 28(9) of Towards 2016 from outsourcing work. The NCA for its part wishes to wind down the in-house telephone helpline, reassign staff to other duties and centralise handling in the outsourced call-centre.
The case was referred to the Labour Relations Commission and a conciliation conference took place. As the parties did not reach agreement the dispute was referred to the Labour Court on the 3rd of August, 2007, in accordance with Section 20(2) of the Industrial Relation Act, 1990. A Labour Court hearing took place on the 28th September, 2007. Both parties agreed to be bound by the Court's recommendation.
UNION'S ARGUMENTS:
3. 1. Clerical Officers at the ODCA had provided information services via helpline and e.mail before the decision to establish the NCA. The Department and the Interim Board were advised by the Union of its objections to the use of a private sector call-centre.
2. Notwithstanding the interim nature of the NCA Board, no decision should have been made to outsource this work without agreement with the Union.
3. In LCR18912 the Labour Court found that the HSE -West was in breach of Sustaining Progress and Towards 2016 by using agency workers instead of direct employees without agreement with the union involved.
EMPLOYER'S ARGUMENTS:
4. 1. Operating two telephone support lines - the in-house helpline and the outsourced NCA call centre - is an unsustainable situation, creating unnecessary confusion among consumers. The NCA believes that the most efficient method of handling consumer queries is by using the resources, services and expertise of a professional call centre provider.
2. Telephone call volumes have been increasing steadily in recent years. Total calls in 2006 were approximately 60,000 and these are expected to rise to 70,000 in 2007.
3. The NCA is anxious to progress matters through the appropriate IR channels. Since the formal objection by the Union there has been extensive engagement by the parties but agreement could not be reached.
RECOMMENDATION:
The dispute arises from a decision by the National Consumer Agency to contract outsource services in connection with the provision of a consumer help line. The decision to outsource this service was taken without the agreement of CPSU, which represents civil servants who would otherwise have provided this service. The Union contends that the circumstances in which this service was outsourced constitutes a breach of Paragraph 28.9 of Towards 2016 (the Agreement), which provides as follows:-
"Service Delivery Options"
It is accepted that there can be situations where, without affecting the essential ethos of the public service, work can be carried out or services delivered more effectively or efficiently, or both, by the employment of temporary staff, contracting out of work to the private sector or outsourcing it to other public service bodies or a combination thereof.
There is a variety of instances where it is recognised and accepted that this is already the case and these will continue.
In exceptional situations involving temporary pressures or peaks, or in order to avoid excessive delays in the delivery of services, management may, at its discretion, have the work undertaken on this basis. Unions will be notified in advance of initiatives of this kind in accordance with Section 28.13 below.
Other work may also be undertaken on this basis where agreed through normal industrial relations mechanisms. Where the parties involved cannot reach agreement in discussions on this matter, the matter may be referred to the public service sub-group of the NIB for consideration. If the matter cannot be otherwise resolved, the subgroup may decide that the issue involved should be referred to the LRC and, if necessary, to the Labour Court for binding determination; where a Conciliation and Arbitration Scheme applies, the issue shall be referred to the Conciliation machinery under the Scheme and, if unresolved, to the Arbitration Board, acting in an ad hoc capacity, for binding determination".
The import of this provision is clear. It provides that, except in circumstances in which outsourcing or contracting out is established, or in exceptional situations involving temporary pressure or peaks (neither of which are relevant in this case), contracting out of services should be by agreement with relevant Trade Unions reached through normal industrial relations mechanisms. If agreement cannot be reached the Agreement provides the dispute may be processed through prescribed procedures leading to a binding determination by either the Court or the Arbitration Board, as appropriate.
It is for the employer seeking a facility to outsource to initiate these procedures. This involves seeking agreement through local level discussions in the first instance. If agreement cannot be reached the dispute should be referred to the public service sub-group of the NIB for consideration. If the matter cannot be resolved at that level the sub-group may refer the matter for binding adjudication. In accordance with established principles of good industrial relations practice parties should not act unilaterally until these procedures have been fully utilized and exhausted.
In this case the Employer outsourced the disputed service without reference to the Union and without invoking the dispute resolution procedure set out in the Agreement. In so doing it acted in contravention of its obligations under the Agreement.
The Court notes that since the matter was originally referred to the LRC discussions have taken place between the parties with a view to seeking agreement to the continuance of the disputed arrangement. No agreement has been reached. The parties did, however, agree that the current contract for the provision of the service should be extended to May, 2008.
Having regard to all the circumstances of the case the Court is of the view that the parties should make a final effort to resolve this dispute by agreement. Accordingly, the Court recommends that the parties undertake a further process of engagement with a view to exploring all possible viable options for providing this service. This should include the continuance of the current outsourcing arrangements, the provision of a dedicated in-house service or a combination of both. This process should be undertaken without precondition or predisposition on either side.
The Court further recommends that the Agency confirm to the Union its commitment to act in strict compliance with the Agreement in future in matters to which the Agreement relates.
If agreement is not reached by 1st January, 2008, the matter should be referred back to the Court for final adjudication.
Signed on behalf of the Labour Court
Kevin Duffy
15th October, 2007______________________
CON.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.