FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Non-application of the Recommendations of Report No. 42 of the Review Body On Higher Remuneration.
BACKGROUND:
2. This dispute concerns the non-application of pay increases recommended by Report No. 42 of the Review Body On Higher Remuneration. This dispute could not be 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 dispute was referred to the Labour Court on the 30th September, 2010, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 25th January, 2011, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The Report clearly recommendeda pay increase in respect of the Workers.
2. The Employer failed to implement this pay increase.
3.TheFinance Emergency Measures in the Public Interest (No 2) Act, 2009does not apply to this dispute because the Department of Finance sanction for the payment of the pay increases predates it.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer accepts that the Report recommended a pay increase in respect of the Workers.
2. There were technical difficulties concerning the application of this pay increases.
3.Concession of this claim is now, however, precluded by the terms of theFinance Emergency Measures in the Public Interest (No 2) Act, 2009.
RECOMMENDATION:
The Court has carefully considered the written and oral submissions of both parties in this case.
From the evidence presented to it in the course of the hearing the Court has formed the view that there is no dispute between the parties on the substantive issue referred to it.
Both parties accept that the claimant grades come within the scope of Report No 41 of the Review Body on Higher Remuneration that was issued in September 2007. The government accepted the report, approved payment and the claimant grades became entitled to receive the first phase of the award in accordance with the Government Decision. The Department of Finance, in April 2008, sanctioned payment of the relevant monies and the Department of Health has in effect acknowledged that the complainants are entitled to payment of the first phase of the award. It has not sanctioned payment of the award because of some technical difficulties identifying the extent to which individual grades are affected. The Department did not dispute the merit of the Complainant grades' entitlement to be paid the terms of the first phase of the award.
Accordingly there is agreement on the substantive issue between both the employer and the employees affected.
It would appear that the delay in finalising the details of application of the award to the respective grades caused it to be overtaken by the Finance Emergency Measures in the Public Interest (No 2) Act, 2009 (the Act). This Act reduced pay in the public service and made it unlawful for an employer to make payments in excess of the reduced amounts to any affected public servant. The Union contends that the Act is not relevant and was not intended to cover circumstances such as these. The Departments of Finance and Health advised the Court that they were satisfied that the restrictions set out in the Act do apply.
The Court was advised that the Minister for Finance refused a request, by the Department of Health, for an exemption pursuant to Section 6 of the Act that would have enabled it to pay the first phase of the award to the claimant grades.
The Labour Court has no role in interpreting or implementing the Act. Accordingly, determining the extent to which this claim is affected by the Act is not a matter for this Court. Equally, as there is no substantive dispute between the parties there is no issue before the Court for consideration.
Both sides are in agreement that the 1st phase of the Review Body award should be paid. It is a matter for the parties to bring this about.
The Court further notes that the Public Service Agreement makes provision for the parties to review all outstanding awards in the early part of 2011. The Court takes the view that the parties might avail of the review to progress this matter.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
31st January, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.