FULL RECOMMENDATION
SECTION 15(1), EMPLOYEES (PROVISION OF INFORMATION AND CONSULTATION) ACT, 2006 PARTIES : HEALTH SERVICE EXECUTIVE - AND - HEALTH SERVICE STAFF PANEL DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Alleged breach of an Agreement on Information & Consultation made pursuant to Section 9 of the Employees (Provision of Information and Consultation) Act, 2006
BACKGROUND:
2. The Unions claim that the Health Service Executive (HSE) breached an Agreement on Information and Consultation between the parties. The Agreement was concluded in September 2006 as a pre existing agreement under Section 9 of the Employees (Provision of Information and Consultation) Act, 2006. The Unions believe that the HSE has contravened the Agreement by not consulting with them over the implementation of a recruitment freeze and other cutbacks. The HSE contend that senior management met the Trade Unions in September 2007 and provided a comprehensive overview of their financial difficulties. It was also stated that the recruitment suspension was temporary and the terms and conditions of existing staff would not be effected.
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 could not be reached the dispute was referred to the Labour Court at the request of the Unions in accordance with Section 15(1) Employees (Provision of Information and Consultation) Act, 2006. A Labour Court hearing took place on the 28th January, 2008
UNION'S ARGUMENTS:
3. 1 The Agreement between the parties is a pre existing agreement under the Act. The manner in which the decisions of the National Officers for Finance and Human Resources regarding cutbacks and recruitment were reached, communicated and implemented ignored the existence of the Agreement.
2 The HSE has fallen short of the legal binding commitment it made directly with each of its employees and the employees of associated organisations by ignoring the existence of the Agreement.
3 The departures from both the spirit and the letter of the Agreement which the Unions signed up to are so far removed from what was recorded or intended as to render the agreement unimplementable unless the HSE are specifically declared to be in breach of it and required to comply in the future.
COMPANY'S ARGUMENTS:
4. 1 Following the recommendations of the National Implementation Body, the HSE entered into a consultation process with the Trade Unions. Confirmation was given that front line services would be protected.
2 The introduction of a temporary pause in recruitment of staff is not listed as a significant issue under the scope of issues falling within the terms of the Agreement. The recruitment pause did not affect the terms and conditions of employment of existing staff.
3 The HSE must ensure that services are delivered within the financial parameters set down by Government. These legal obligations are set out in Sections 20 and 21 of the Health Act, 2004
RECOMMENDATION:
This case was referred to the Court pursuant to Section 15(1) of the Employee (Provision of Information and Consultation) Act 2006 (the Act). The dispute concerns the interpretation or operation of an Agreement on Information and Consultation made between the health services management and trade unions working under the auspices of the Health Service National Partnership Forum, dated 1st September 2006 (the Agreement). This is a pre-existing agreement within the meaning of s9 of the Act. The substance of the complaint is that the HSE contravened the Agreement in failing to consult with the Trade Unions in relation to an initiative which it introduced in September 2007, known as the “Financial Break Even Plan”.
The factual background upon which this complaint is grounded is the same as that giving rise to the dispute dealt with by the Court in Recommendation
No. 19152. The Unions contend that HSE’s failure to consult with them in relation to the initiative in issue constitutes a breach of both Towards 2016 and the Agreement. This Recommendation should, therefore be read in conjunction with Recommendation No. 19152
The provisions of the Agreement which are material for present purposes are at Clauses 12 and 19 and at Appendix 5
Clause 12 provides: -
- Dealing With Unexpected Circumstances.
It is recognised that some changes and associated decisions need to be made in an expeditious and timely fashion, in order to respond effectively to unexpected circumstances and compromise may be necessary on some of the rigour of this agreement. All employees and their union representatives should be informed of such circumstances at the earliest possible date.
Clause 19 provides:-
- Subject of Consultation
Consultation (meaning the exchange of views and establishment of dialogue between the employees’ representatives and the employer) shall take place on all issues relating to ;- Probable developments of the activities of the relevant health service organisation(s)
- Probable development of employment within the health service or any measure envisaged, in particular where there is a threat to employment
All decisions likely to lead to substantial changes in work organisation or in contractual relations (ref Article 4.2 of Directive, copied at Appendix 2)
- Probable development of employment within the health service or any measure envisaged, in particular where there is a threat to employment
Reflective of the intent of the EU Directive (Article 4.4) and the Act, such consultation shall be with a view to reaching agreement on such decisions.
A more comprehensive list of areas for information and consultation is set out at appendix 5 - Probable developments of the activities of the relevant health service organisation(s)
Appendix 5 sets out an indicative list of examples what are to be regarded as significant issues on which consultation is required.
The Act and the Agreement are intended to give effect the rights and responsibilities of the parties arising from Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community. Accordingly the Agreement must be interpreted and applied in the light of the wording and purpose of the Directive in order to achieve the objective pursued by the Directive (see the Decision of the ECJ in Case 14/83Von Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891.
Article 4.2 of the Directive provides
- 2. Information and consultation shall cover:
The HSE accepts that it did not consult with the Unions in respect to the initiative giving rise to the dispute. Its defence to the present claim, as set out in its submission to the Court, is that it was not required to do so under the Agreement. In advancing that argument it pointed out that the introduction of a temporary pause in employment is not listed as a “significant issue” under Appendix 5 of the Agreement.
The Unions submitted that the issues arising under the impugned initiative came within the ambit of Clause 19 of the Agreement and should have been the subject of consultation and information.
Conclusions of the Court.
There is no serious conflict between the parties as to the salient facts of this case. The net issue for consideration by the Court is whether or not the HSE was obliged by the Agreement to have informed and consulted the Unions on its breakeven initiative prior to its finalisation and implementation. The answer to that question lies in the application of the various provisions of the Agreement identified as material, when interpreted in the light of the wording and purpose of the Directive.
In relation to each of these provisions the Court has concluded as follows: -
- Clause 12.
Clause 12 of the Agreement provides that in the case of difficulties arising from unforeseen circumstances the obligation to consult may be abridged but it does not relieve the employer of that obligation altogether. In any event the Court has very considerable doubt as to whether the events giving rise to this dispute could properly be classified as unforeseen as the HSE must have had some prior indication that its budget was being overrun. Furthermore, the HSE did not inform the unions of any circumstances coming within the scope of this Clause, as it required by the Clause itself. Neither does the HSE now seek to rely on this provision in support of its defence to the present complaint.
Appendix 5 of the Agreement.
The HSE’s principal defence is that the decisions implemented in relation to existing staff do not come within the ambit of any of the issues listed as significant in Appendix 5. The HSE is correct in pointing out that none of the issues mentioned in this list are directly apposite in the present case. However the list is expressly not exhaustive and, in the Court’s view, the overriding determinant of what gives rise to the obligation to consult is the type of circumstances referred to at Clause19.
Clause 19.
This Clause prescribes an obligation to consult onprobable developments of the activities of the relevant health service organisation(s).This wording must be interpreted in light of the wording of Article 4.2 (a) and (b) of the Directive. Article 4.2 (a) imposes an obligation to provide information on “the recent and probable development of the undertaking's or the establishment's activities and economic situation”.Article4.2(b) provides that an obligation to inform and consult arises “on the situation, structure and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment”.It is noted that this provision applies, in particular, where there is a threat to employment (and the HSE told the Court that there was no threat to employment). However, it is clear from the language in which this provision is expressed that its application is not confined to such situations.
In the Court’s view the combined effect of Clause 19 of the Agreement and Article 4.2 of the Directive creates an obligation to inform and consult of sufficiently wide application to cover the type of developments which arose in this case.
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. However, the Agreement (and consequently the Act) required the HSE to inform and consult with the unions in respect of the employment related implications of its breakeven initiative. Moreover the obligation imposed by the Agreement is to consult with a view to reaching agreement. That required the HSE to provide the unions with an opportunity to put forward their views on what was proposed so as to have a real and constructive input into the decision making process.
Having regard to all the circumstances of this case the Court must conclude the Unions’ complaint is well-founded and that the HSE contravened the Agreement by its failure to inform and consult with the Unions in advance on 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.