FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(2), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - PSYCHIATRIC NURSES ASSOCIATION IRISH HOSPITAL CONSULTANTS ASSOCIATION HEALTH SERVICE STAFF PANEL DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Alleged breach by the Health Service Executive of Towards 2016
BACKGROUND:
2. The claim before the Court that the Health Service Executive (HSE) is in Breach of the Towards 2016 Agreement is being brought by a number of Unions representing their combined membership. In September 2007 a circular was issued by HSE Management which contained plans to cut costs and overspending. Among the measures introduced was a suspension in the recruitment of new staff, a halt to all promotions or acting up opportunities and staff on maternity leave, parental leave etc. not to be replaced. The Unions claim that there was no prior consultation between the parties before this circular was issued and that the actions taken by the HSE in implementing the provisions in the circular of September, 2007 is in breach of Towards 2016. The HSE does not accept that its actions were in breach of Towards 2016. Its position is that the recruitment pause was a cost containment measure and that this pause would not affect the terms and conditions of employment of serving staff. The Unions received assurances over the HSE position in September and November, 2007.
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 26th October, 2007. A Labour Court hearing took place on the 28th January, 2008.
UNIONS ARGUMENTS:
3. 1 The HSE's actions in implementing the terms of the circular of September 2007 are in breach of several provisions of the Towards 2016 Agreement including 28.13 and 30.2.
2 The cutbacks introduced can have profound consequences for the overall quality and effectiveness of health service delivery and for patient outcomes. It has been indicated that a chaotic situation exists for those required to manage frontline services and provide adequate patient care.
3 There was no prior consultation with the Unions. The Unions only became aware of the contents and the implications when the circular had issued and was in general circulation.
COMPANY'S ARGUMENTS:
4. 1 The Chief Executive officer of the HSE is the Accounting Officer with responsibility and accountability to the Government. Services must be delivered within the financial parameters set down by the Government. This is a legal obligation for the HSE under Sections 20 and 21 of the Health Act, 2004.
2There is no provision within Section 28.13 of Towards 2016 which obliges the Chief Executive Officer of the HSE to consult with the Unions in discharging his legal responsibility as Accounting Officer as provided for in the Health Act 2004.
3 The HSE outlined to the Unions in December, 2007 that employment levels and costs must be rigorously monitored and controlled from the start of 2008. The introduction of the recruitment pause did not affect the terms and conditions of employment of existing staff. The HSE lifted the recruitment pause on 1st January, 2008.
RECOMMENDATION:
This dispute arose from introduction by the HSE, in September 2007, of an initiative referred to as the “Financial Break-Even Plan”. The Unions contend that the HSE failed to consult with them prior to the implementation of this initiative and that this failure contravened various provisions of the Towards 2016 National Partnership Agreement. The HSE deny that it was obliged to consult with the Unions on the initiative.
The initiative was intended to address a serious overrun in the HSE’s budgetary targets for 2007. It involved the implementation of cost reduction measures across a number of services, including cutbacks in staff costs. This involved, amongst other things, a moratorium on the appointment of permanent or temporary and locum staff, and on promotions and acting-up arrangements. Resumption of staff following career breaks was temporarily deferred. The use of agency staff and overtime working were also curtailed.
The Unions rely on a number of provisions of Towards 2016 in advancing the argument that the HSE were obliged to consult with them is respect of this initiative. However, in the Court’s view, the most pertinent provision, for present purposes, is contained at Paragraph 28.13 of the Agreement, which provides as follows: -
- “Management of the introduction of Change and New Developments
28.13 In accordance with the partnership approach, unions will be informed in advance of all new workplace-related initiatives which have a significant effect on staff, the reasons for them and the proposed implementation date. Notification will be given in advance and in sufficient time to allow discussions with the union(s) concerned to take place (due regard being given to situations of emergency). Such discussions will cover the nature of the changes involved, the reasons for them and the main impacts on staff. The discussions will be approached in a partnership manner and will be concluded in time to allow the changes to be introduced by the proposed implementation date. Subject to this, it is accepted that management have the right to implement changes in accordance with the provisions of the Agreement. In any case where a dispute in relation to such changes is being processed through the relevant industrial relations machinery in accordance with the procedures set out in Section 27.9 of this Agreement, staff will co-operate with the changes while the issue is being so processed.”
In the Court’s view Section 28.13 of Towards 2016 gives expression to the general principles of partnership and joint problem-solving upon which the Agreement is based. The clear import of this provision is that where initiatives are in contemplation which can have a significant effect on staff consultation should take place before decisions are crystallized and implemented.
The Court has no doubt that the initiatives giving rise to this dispute did have a significant effect on staff. It had the effect of reducing the number of staff available to provide a service to patients and this, in turn, placed available staff under additional pressure. It also affected staff in that overtime and promotions were curtailed and staff members who had a legitimate expectation of resuming work after a career break had their return to employment delayed.
In the Court’s view the combined effect of these factors brought the initiative within the ambit of Section 28.13 of Towards 2016 and the HSE should have consulted the unions before the final decision was taken to implement these measures.
The Court accepts that the obligation to consult does not provide the parties to be consulted with a right of veto. Nor should it be seen as inhibiting the right or duty of management to take appropriate action to deal with changing circumstances. The Agreement does, however, require management to inform unions in advance of plans or proposals which have the potential to significantly affect their members in employment. It further requires that the Unions be provided with an opportunity to put forward their views on what is proposed and have a real and constructive input into the decision-making process in the spirit of partnership which the Agreement seeks to promote.
Accordingly the Court has concluded that in this instance the HSE failed in its duty under Toward 2016 to consult with the Unions before proceeding to implement its breakeven initiative. The Court recommends that the HSE should assure the Unions that should the need for a similar initiative arise in the future full and adequate consultation will take place.
The Court does not consider it appropriate to make any further recommendations in this case.
Signed on behalf of the Labour Court
Kevin Duffy
15th February, 2008______________________
DNChairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.