FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : TRINITY COLLEGE - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Retrospection of increases due under Sustaining Progress and Towards 2016
BACKGROUND:
2. This case concerns a dispute between SIPTU and Trinity College in relation to the retrospection of wage increases due under Sustaining Progress and Towards 2016. The non-payment of the increases due under both National Wage Agreements occurred as a result of a refusal on the part of Residential Service Attendants (RSA's) employed by Trinity College to co-operate with the introduction of an electronic clocking system for monitoring the patrol of the RSA's on campus. The Union initially sought the application of the allowance that applies to security personnel employed by the college. This claim was subsequently channelled through procedures and the Labour Court did not concede the Unions claim (LCR 18898). The Court's recommendation was accepted and sanction issued for payment of the increases. It is the issue of retrospection of the payment that is before the Court on this occassion.
The dispute was not 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 matter was referred to the Labour Court on 3rd March 2008 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 25th April, 2008.
UNION'S ARGUMENTS:
3 1 The Union has always co-operated with the clocking system. When problems arose with the electronic version of the system the recordings were made as they had previously been done. Seeking the allowance enjoyed by security personnel to operate the electronic systems was a legitimate dispute processed through procedures.
2 It is unacceptable that the workers have wage increases witheld by the Department of Education and Science Performance Verification Group (E.S.P.V.G.). Disputes that arise and are dealt with through the appropriate third party dispute resolution machinery should not result in cost of living increases being witheld from workers.
MANAGEMENT'S ARGUMENTS:
4 1 The introduction of the electronic monitoring system is consistent with normal ongoing change. The RSA's refusal to co-operate was a form of industrial action and a breach of National Wage Agreements.
2 Management cannot apply full retrospection to the increases as it would be unfair to those who initially co-operated with the terms of the National Wage Agreements and were awarded the appropriate increases.
RECOMMENDATION:
This case relates to the application of Section 27.18 of the Public Service Pay Agreement associated with the Towards 2016 Partnership Agreement and the corresponding provision of Sustaining Progress . The circumstances giving rise to the dispute are briefly as follows: -
- In or about September 2005 the College introduced a new electronic clocking system for monitoring patrols by staff designated as Residential Services Attendants (RSA.s). This replaced an earlier clocking system. The staff refused to use the new system unless they were paid an allowance of €22.70, which is payable to Security Staff in the main College campus. This refusal continued up to 23 August 2007.
In the interim the Union’s claim was referred to the Conciliation Service of the LRC in November 2006. Agreement was not reached and the Dispute was referred to the Court. The Court issued Recommendation 18898 on 22nd May 2007 in which it rejected the Union’s claim. The Court’s Recommendation was finally accepted and cooperation with the system restored on 23rd August 2007.
The RSA’s refusal to cooperate with the new system was brought to the attention of the Performance Verification Group of the Department of Education and Science by the Secretary General of the Department in March 2006. The PVG refused to sanction payment of the final phase of Sustaining Progress due on 1st June 2006. Subsequently, on the advice of the PVG the first and second phases of Towards 2016 were withheld. Following the acceptance of the Labour Court Recommendation, and the restoration of cooperation with the monitoring system, the increases withheld were restored in full but without retrospection.
The College contends that the workers refusal to cooperate with the new system amounted to industrial action, contrary to Section 19.6 of Sustaining Progress and Section 27.1 of Towards 2016. The spokesperson for the College also said that it was in contravention of the obligation of the workers to cooperate with ongoing change under Section 19.22 and 26.1 of Sustaining Progress and Sections 27.18 and 33.1 of Towards 2016.
The refusal to use the new system may well have constituted industrial action (in that it was in furtherance of a claim for payment of an allowance). It is noted, however, that the PVG decided that payment of the increases was not warranted on the grounds that the RSAs had“not co-operated with the modernisation/change agendas reflected in Action Plans agreed in the context of both the Sustaining Progress and Towards 2016 Agreements” (see penultimate paragraph of the letter from the PVG to the Provost dated 20th December 2006). Accordingly it is in that context that the matter must be considered by the Court.The Union claims that the increases were withheld because the workers concerned were in dispute with their employer. The Union contends that the workers never refused to use the new monitoring system; they merely sought payment for so doing. They further claim that the process engaged in by the PVG was unfair because the workers were not given an opportunity to state their case.
In the Court’s view this line of argument is without merit. The increases were withheld not because the workers were in dispute but because they refused to cooperate with normal on-going change. The Agreement clearly required them to use the new system, under protest if necessary, and to process their dispute through established procedures. The Court has seen all of the correspondence passing between the College authorities and the PVG and it is satisfied that the decisions were taken properly and in line with the procedures prescribed by the Agreement.
There are, however, aspects of this case which the Court finds surprising. The dispute concerning the use of the new system went on over a period of some 23 months. Yet there is no evidence of the College having raised the matter formally with the Union or having put it on notice that its members were regarded as being in breach of their obligations under the Agreement. Further, both Agreements provided that where it is alleged that a party is in breach of the Agreement the matter should be referred to the Court under Section 20(2) of the Industrial Relations Act 1969 for a binding decision. Also, where dispute arises concerning co-operation with normal on-going change the dispute should be similarly referred to the Court. Had that approach been taken the substantive issue giving rise to this dispute could have been quickly and definitively resolved.
In that regard 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.
The Court is satisfied that the Secretary General of the Department of Education and Science and the PVG were correct in their conclusion that the RSAs were in breach of their obligations under the Agreement in refusing to co-operate with the new system, under protest if necessary. It appears to the Court, however, that the College authorities took a somewhat more indulgent attitude in the matter. In particular local management did not take any meaningful steps to impress upon those involved the seriousness of their actions and the likely consequence for future pay increases. That is a factor which the Court must take into account in its consideration of the case.
In the special 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 there was an unreasonable and unjustified delay on the part of the workers in accepting the Court’s Recommendation after it issued. Accordingly the Court recommends that retrospection due up to the date on which Recommendation 18898 issued should be paid.
Signed on behalf of the Labour Court
Kevin Duffy
10th June, 2008______________________
AHChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.