FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : FÁS - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Dismissal Of 52 Trainers/Instructors Currently On Fixed Term Contracts
BACKGROUND:
2. The issue before the Court concerns 52 workers on fixed term contracts who have been informed by FÁS that their contracts are being terminated at the end of January, 2009. It is the Union's claim that FÁS are in breach of their contractual obligations as the employment is being terminated in advance of the dates stated in their contracts. It also claims that FÁS are in breach of the workers rights under the terms of a 1997 collective agreement. The collective agreement sets out certain minimum entitlements that are applicable to all staff within the organisation. It is FÁS' position that the dismissals were necessary due to a significant downturn suffered in the construction industry and its inevitable impact on the training of construction and electrical trades apprentices. FÁS contend that the 1997 collective agreement and the clause referring to the assurance of job security only applies to workers employed at that time.
The dispute could not be resolved at local level and was the subject of 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 1st December, 2008 in accordance with Section 26(1) of the Industrial relations Act, 1990. A Labour Court hearing took place on the 14th January, 2009.
UNION'S ARGUMENTS:
1. 1 The written contracts of the workers concerned are fixed term contracts and not fixed purpose asFÁS have contended and therefore, the workers have an entitlement to see out the duration of the contracts as stated. Many of the workers have not been issued with written terms and conditions.
2 FÁS are in breach of the fixed term workers rights as they are being treated less favourably than their permanent colleagues through not allowing the fixed term staff to work up to the natural end of their contracts, as the permanent staff are entitled to do.
3 It has been normal practice within FÁS to transfer staff between divisions on occasions to address dramatic changes within the economy.
COMPANY'S ARGUMENTS:
4. 1 FÁS is not treating its fixed term workers less favourably then permanent workers. Work no longer exists for some construction trade instructors both permanent and fixed term contract due to the downturn in the construction industry.
2 The fixed term staff have least seniority. The termination clauses of the fixed term contracts of employment are being invoked due to the downturn and the serious budgetary constraints.
3 FÁS faces a new year where its training delivery services will be required more than ever albeit not in apprenticeship training. It will be expected to deliver this service from existng or less resources in an efficient and cost effective manner.
RECOMMENDATION:
The matter before the Court concerns the proposed dismissal of 52 Instructors on Fixed Term Contracts, in circumstances where the contracts have not reached their expiry date.
In October 2008 FÁS notified the Instructors that their employment would terminate on 30th January 2009 due to the downturn in the Construction Industry which thereby reduced the need for Construction and Electrical Trades Instructors.
The Union disputed the organisations right to terminate the Fixed Term Contracts.
The Court has considered the submissions of both parties. It is clear to the Court that due to the significant decline in the number of Construction and Electrical Trades apprentices, coupled with the Government Directive to reduce staff by 3% in 2009, there is a need to reduce the numbers employed within FÁS, whether Fixed Term employees or not.
It became clear to the Court at the hearing that there is a process currently in place between the parties aimed at examining the possibility of alternative employment options within FÁS. The Court recommends that this process should continue and should explore all aspects of the organisation’s service to determine whether there are suitable alternative employment opportunities in lieu of the proposed redundancies.
In the event that this process fails to deal with the required reduction in employee numbers, the Court recommends that those workers being made redundant should be selected on the basis of their service within FÁS and on the basis of the organisations skills requirement. Furthermore, the Court recommends that the parties should engage as a matter of urgency on agreeing a severance deal for those whose contracts may be terminated prematurely. The Court recommends that this process should be finalised as soon as possible but not later than 23rd January 2009. If it is not completed by that date it may be referred back to the Court for an urgent recommendation.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th January, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.