FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DUBLIN CITY UNIVERSITY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Retrospective payments under Sustaining Progress/Towards 2016
BACKGROUND:
2. The Union's claim is for retrospective payment to 8 - 10 workers due under various National Wage Agreements. The period of retrospection is from 1st December, 2005, to 1st April, 2007. The University's case is that the payments were not made because the group of workers would not co-operate with the introduction of a new roster for over two years.
The University claims that, as part of the Agreed Action Plan under Sustaining Progress 2003 - 2006 and Parallel Benchmarking, Security Staff signed up"to co-operate with the introduction and implementation of an agreed new roster in security by June, 2005."A number of progress reports took place but agreement could not be reached on a new roster. The dispute was then referred to the Labour Relations Commission (LRC) and it was not until February, 2007, that agreement was reached. The implementation date was 2nd April, 2007. The University had refused to pay monies due to the workers whilst the dispute was ongoing but payment was resumed from the 2nd April, 2007. The Union subsequently wrote to the University seeking retrospective payments from 1st December, 2005, to 1st April, 2007.
As agreement could not be reached at the LRC the dispute was referred to the Labour Court on the 8th February, 2008, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 21st May, 2008.
UNION'S ARGUMENTS:
3. 1. The workers should be paid the retrospective increases as they complied with both National Wage Agreements, they followed agreed procedures and they maintained industrial peace.Both sides had to agree on the new roster and this eventually happened in early 2007.
2. There was no time limit on the length of the discussions. Both parties rejected proposals put forward by the other side; it was not just the Union side that was at fault as implied by the University.
UNIVERSITY'S ARGUMENTS:
4. 1. Considerable efforts by the University to facilitate the introduction of a roster were frustrated by the Union over a period of two years during which time the workers not only rejected management's new rosters but rejected their own proposals.
2. The lack of progress over the two years resulted in the need to employ contractors and cost the University in the region of €30,000.
3. The claim is cost increasing under the terms of Sustaining Progress.
RECOMMENDATION:
This dispute relates to alleged failure of the workers concerned to adhere to a provision of the agreed action plan under the Sustaining Progress Agreement and the Agreement on Parallel Benchmarking. The provision at issue provides that the staff concerned will“co-operate with the introduction and implementation of an agreed new roster system in security by June 2005 which would be subject to local negotiations”.
From the information before the Court it appears that long and protracted discussions took place at local level on foot of this commitment. However, agreement was not finally reached until 28th February, 2007. The University says that the failure to reach agreement constituted a breach of the Agreement, in consequence of which payment of retrospective increases is not warranted.
It is clear to the Court that when the deadline for introducing the new roster was reached both parties continued to negotiate with a view to reaching agreement. By implication it was agreed to extend the deadline. At no stage did the University seek to progress the matter to the next stage in its normal disputes settling procedures. Moreover, it was not until 6th December, 2006, that the University first put the Union on notice that they regarded the failure to finalise negotiations as a breach of the Action Plan which might result in a withholding of retrospection. Thereafter matters were brought to finality and agreement was reached on 5th February and the University was informed accordingly by the Union on 28th February. By agreement between the Union and the University implementation of the new rosters was deferred to 1st April, 2007.
The Court is of the view that where an issue arises which is considered to be of such seriousness as to warrant the withholding of an increase due under the Agreement management should put the workers concerned on notice to that effect in clear and definitive terms. It is also desirable that the procedures prescribed by the Agreement should be invoked at an early stage to address the matter.
In this case both parties seemed content to continue with local discussion long past the date for final agreement prescribed by the Action Plan. It was only in December 2006 that the management sought to bring the matter to a head and indicated the likely consequence of a continued failure to bring finality to the issue. The dispute was resolved shortly thereafter.
In the circumstance of this case the Court is of the view that the decision to withhold all retrospection of the increases in issue is not warranted. The Court is, however, of the view that the only period in respect to which retrospection is not warranted is between 6th December, 2006, and 28th February, 2007. The Court recommends that all other retrospection be paid.
Signed on behalf of the Labour Court
Kevin Duffy
3rd June, 2008______________________
CONChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.