LCR20214

The Court has carefully considered the submissions of both parties in this case.

The Court finds that Dublin City Council has complied with the provisions of the Croke Park Agreement in the manner in which it has processed both the review of the viability of the domestic refuse collection service and the subsequent decision to exit the service entirely and redeploy the affected staff.

The market for the collection of domestic refuse has effectively been deregulated in the Dublin area. As a result the City Council has ceased to be the dominant service provider in what is now a very competitive multi-player industry.� The cost of providing the service, allied to intense price competition for customers, led the City Council, in the context of severe pressure on budgets, to review the viability of its continued participation in the market.� It invited the unions to examine the options available to the Council with a view to preparing a viable way forward.� The unions proposed the appointment of an external consultancy company, with agreed terms of reference, to review the options available and to issue findings and make recommendations for their consideration.� All parties agreed to this proposal and Dublin City Council placed no restrictions on the terms of reference for the review. The external consultants reported that continued participation in the market for domestic refuse collection was not a viable option for Dublin City Council. The Unions were invited to comment on the Consultants report. One of the unions involved indicated that Consultant's report was flawed. However it never went beyond that mere assertion despite a request from the City Council that it set out the basis of its critique of the report in writing to enable all parties make a proper assessment of the points that were being made by the Union.

In the absence of a response from the Union to this request, Dublin City Council, on foot of the Consultant's report, developments in the sector and a tightening budgetary situation, decided to exit this market and redeploy the affected staff. It announced this decision to both the Unions and the Staff and invited their participation in the implementation of this decision.� It placed no restrictions on the issues that could be raised in the consultation process.� However, in the absence of a comprehensive rebuttal of the consultants' report, the probability of a comprehensive reversal of the findings of the agreed external consultants was remote and the City Council reasonably behaved accordingly.� One of the Unions then withdrew from the process and referred the decision to "exit the market" to the Labour Court in accordance with the provisions of section 26(1) of the Industrial Relations Act 1990 and Section 1.8 of the Public Service Agreement 2010 - 2014.

The Union's basic contention was 1) that the decision to exit the market amounted to a breach of the provisions of the "service provision" terms appended to the Public Service Agreement 2010 -2014 and 2) that Dublin City Council had failed to adhere to the provisions of Sections 1 and 6 of the Service Delivery Options document that is appended to that agreement.

The Court has examined the provisions of the appendix.� The Court takes the view that the decision to exit the market in this case comes within the provisions of Section 1 of the Service Delivery Options that is appended to the Agreement.

Section 1 provides that"The Public Service is committed to the provision of public services through efficient, high quality and cost effective employment. It is also committed to the use of direct labour to the greatest extent possible, where consistent with the efficient and effective delivery of services."

Dublin City Council has come to the conclusion that it cannot provide an "efficient and effective" service through the use of direct labour. Indeed it has gone beyond that. It has engaged with the trade unions and invited them to identify ways in which it might do so. This engagement gave rise to the appointment of an independent consultant, nominated by the trade unions, to examine, against agreed terms of references, the options available to both sides in this regard. The independent consultant found that there were no circumstances in which this criteria could be met no matter what productivity concessions were made or no matter how the services was reorganised or restructured. Furthermore the Court is satisfied that all of the issues that must be taken into account when deciding to outsource a service set out in Section 6 of the Service Delivery Options Appendix could have been written into the Consultant's terms of reference and were not. Despite this it is clear that the Consultant implicitly addressed the "overall cost" , "quality of service" and "effectiveness" issues. No substantial submissions on the "public interest" issues that might arise were put to the City Council at the relevant time and accordingly it was reasonable for it to proceed on the assumption that either none existed or that they would be submitted during the consultation period provided for under the Public Service Agreement.

Moreover the Court takes the view that the decision to withdraw from the collection of domestic refuse and to leave the market to the private sector does not amount to "outsourcing" within the normal meaning of that word. Rather it reflects the reality that the customer base has been moving away from Dublin City Council as price competition from new entrants to the market undermines the capacity of the Council to maintain the service at a price that makes it economically viable.� If it were to continue in this market and maintain its customer base Dublin City Council would have had to subsidise this service for the foreseeable future with inevitable adverse consequences for other services that it needs to and indeed is mandated to provide to the City.� Accordingly the City Council made an entirely rational decision, in a manner consistent with the Public Services Agreement, to reorganise its services, reallocate resources and concentrate them on services that are not the subject of market and prices competition and that are proper and essential to the running of a modern capital city. In doing so it was taking appropriate actions to comply with the commitments made under the Public Service Agreement on the protection of pay and employment.

On the second point raised by the Union the Court finds that Dublin City Council invited the parties to engage with it on the consequences of this decision in order that staff could be facilitated with their optimum redeployment choices consistent with the provision of services to the city. The Court has seen no evidence that this process was intended to be other than meaningful and fulsome. Neither has the Court seen any evidence that the City Council would refuse to examine any proposal that addressed the market realities in which it had to operate.

Accordingly, the Court finds that Dublin City Council has engaged with the unions and acted in accordance with the provisions of the Public Service Agreement and recommends that the Union re-engage with the City Council for the purpose of facilitating the implementation of the decision to discontinue its involvement in the domestic refuse collection service. If there is compelling evidence that the union wishes to put to the City Council that would identify a compelling alternative way forward they should take the opportunity of the consultation period to so do whilst simultaneously addressing the practical implications of the decision that has been taken and that has now a very short time scale for implementation.

The Court so recommends.




Signed on behalf of the Labour Court



Brendan Hayes
9th December, 2011______________________
CONDeputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.