FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(2), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MAYO COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Alleged Breach of Clauses 28.9 and 28.13 of 'Towards 2016' by Mayo County Council.
BACKGROUND:
2. Arising from Mayo County Council's decision to make greater use of archaeological contractors, it terminated the employment of a number of archaeologists who had been employed on fixed term contracts. This dispute concerns the Union's claim that the Council's unilateral action was in breach of clauses 28.9 and 28.13 of 'Towards 2016'.This dispute was the subject of a Conciliation Conference held under the auspices of the Labour Relations Commission but, as no progress could be made, this matter was then referred to the National Implementation Body, which recommended that the matter be jointly referred to the Labour Court and that the parties be bound by the outcome. Accordingly, on 14th August, 2008, both parties requested that the dispute be referred to the Labour Court for a full hearing and, in accordance with Section 20(2) of the Industrial Relations Act, 1969, both parties agreed to be bound by the Court's recommendation. A Labour Court hearing took place on the 13th April, 2010.
UNION'S ARGUMENTS:
3. 1. The Council is in breach of 'Towards 2016' because it failed to inform the affected staff in advance of these changes.
2. Private contractors are now doing the work of archaeologists who were either made redundant by the Council or assigned to other duties.
3.It is difficult to find any other reasons for the Council's actions other than it wished to avoid a situation whereby it would be obliged, under the Fixed Term Work Act, 2003, to issue contracts of indefinite duration.
EMPLOYER'S ARGUMENTS:
4. 1. The Council's decision to reduce the number of archaeologists it employs was necessitated by a decision taken by the National Roads Authority to discontinue the use of the Council's in-house archaeological services.
2. The Council was not in breach of Clause 28.9 of 'Towards 2016', because this clause allows for the contracting out of work to the private sector as long as it does not affect the 'essential ethos of the public service'.
3.Notwithstanding the fact that the Council does not accept that the terms of Clause 28.13 of 'Towards 2016' apply to it as this was not a 'new workplace-related initiative', the Council did consult fully with the Union before introducing these changes.
RECOMMENDATION:
The dispute arises from Union’s contention that where archaeological services are required as part of road building and other projects being carried out by Mayo County Council these services should not be contracted out by the County Council.
The Union submitted that in 2007 the Council had dismantled its archaeological services and privatised the service. It contended that the impact of this decision on archaeologists employed by the Council meant that many on fixed term contracts did not have their contracts renewed and others suffered a worsening in their conditions of employment resulting in a removal of grades from the sector.
It held that the Council’s policy of engaging contractors was in breach of Paragraph 28.9 of Towards 2016 which provides as follows: -
- "Service Delivery Options"
It is accepted that there can be situations where, without affecting the essential ethos of the public service, work can be carried out or services delivered more effectively or efficiently, or both, by the employment of temporary staff, contracting out of work to the private sector or outsourcing it to other public service bodies or a combination thereof.
There is a variety of instances where it is recognised and accepted that this is already the case and these will continue.
In exceptional situations involving temporary pressures or peaks, or in order to avoid excessive delays in the delivery of services, management may, at its discretion, have the work undertaken on this basis. Unions will be notified in advance of initiatives of this kind in accordance with Section 28.13 below.
Other work may also be undertaken on this basis where agreed through normal industrial relations mechanisms. Where the parties involved cannot reach agreement in discussions on this matter, the matter may be referred to the public service sub-group of the NIB for consideration. If the matter cannot be otherwise resolved, the subgroup may decide that the issue involved should be referred to the LRC and, if necessary, to the Labour Court for binding determination; where a Conciliation and Arbitration Scheme applies, the issue shall be referred to the Conciliation machinery under the Scheme and, if unresolved, to the Arbitration Board, acting in an ad hoc capacity, for binding determination".
Paragraph 28.13 of the Agreement states: -
- “In accordance with the partnership approach, the 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.”
The Council disputed that this constituted a “new workplace-related initiative”however in any event it submitted that it did engage in a process of consultation with the Trade Union on the matter and a number of meetings were held from July 2007 until the referral by the SIPTU to the National Implementation Body in March 2008.
The Council held that it had no involvement in the NRA’s decision to have the archaeological work done in a different manner, whereby it no longer required the Council’s archaeological services.
The Court notes that both sides accept this and consequently is of the view that the Council was not engaged in contracting out as envisaged by Paragraph 28.9 of Towards 2016.
Having regard to all the circumstances of the case the Courtdoes not find that the Council was in breach of Paragraph 28.9 of Towards 2016. Furthermore, the Court does not accept that the matters outlined above come within the definition of “new workplace-related initiative”as provided for under Paragraph 28.13 of Towards 2016.
However, the Council has indicated that it will in the future engage archaeological contractors on all capital schemes where the Council’s design office are involved and the Court is of the view that this aspect does come within the ambit of Paragraph 28.13 of Towards 2016.
By letter dated 17th January 2008 to each individual employed in the Council’s archaeological service, it outlined the new reporting structure and at paragraph 4, it stated:
- “In future, in house Archaeologists will only be employed on archaeological assessments or excavation monitoring. If archaeological “digs” have to be carried out external contractors will be procured for this purpose.”
As the Council has indicated that it intends to contract out these services in the future, the Court recommends that it should engage in discussions with the Union on this initiative and such discussions should be in accordance with the provisions of Paragraph 28.13 of Towards 2016.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th April, 2010______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.