FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HEALTH SERVICE EXECUTIVE - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Pay and related issues concerning the integration of the Community Welfare Service into the Department of Social Protection.
BACKGROUND:
2. The case before the Court concerns a claim by the Unions on behalf of their members currently employed in various grades in the Community Welfare Service (CWS) division of the Health Service Executive (HSE). In 2006 the Government took the decision to transfer the functions of the CWS to the Department of Social, Community and Family Affairs, now the Department of Social Protection. Under the auspices of the Labour Relations Commission an agreed protocol for the transfer of staff was decided upon with CWS staff transferring initially on a secondment basis from 1st January, 2011 and becoming civil servants from 1st October, 2011. It was also agreed that issues relating to the transfer would be negotiated under the terms of the Public Service Agreement 2010-2014 (PSA) during the secondment period. On several occassions the parties engaged in the services of the Labour Relations Commission and a number of Conciliation Conferences were held. Agreement was reached between the parties on a number of issues relating to the transfer of CWS staff, however, there were several outstanding issues including pay and grading, superannuation, allowances, acting/temporary positions, working hours, annual leave and options, which could not be resolved. The dispute was referred to the Labour Court on 23rd May 2011, in accordance with Section 26(1) of the Industrial Relations Act 1990. A Labour Court hearing took place on the 11th July, 2011.
UNIONS' ARGUMENTS:
3. 1. The Unions are claiming the integration of Community Welfare Officer grades to be carried out on a cost-neutral basis in terms of pay, pension, and terms and conditions of employment.
2. The Unions are seeking that Appeals Officers and Support Grades retain their current pay and terms and conditions unless those of the Civil Service are improvements.
3. The Unions are further seeking the regularisation of all staff in acting and temporary positions and contend that it is unfair for Management to exclude certain staff members from the regularisation process.
4. The Unions contend that options including the option to remain within the HSE, alternative redeployment or exit from the service should be made available to all transferring staff.
5. It is also the Unions' claim that all allowances currently paid to staff should remain to be paid once the transfer has been completed.
EMPLOYER'S ARGUMENTS:
4. 1. Management contends that there will be no reduction in pay for transferring staff and that rates of pay will be retained until promotion when the appropriate pay scale will then be applied.
2. In line with the terms of the Public Service Agreement 2010-2014 all transferring staff will be subject to the annual leave, working hours and allowances entitlements of those in the Civil Service.
3. Management asserts that allowances currently paid to transferring CWS staff and that are deemed eligible, will continue to be paid after the transfer has been completed. All other allowances that are ineligible to be paid after the transfer will be compensated at 1.5 times the annual loss amount.
4. The provisions of thePSA do not allow for options to be provided to staff who are required to transfer and furthermore in this instance the CWS division of the HSE will cease to exist once the transfer of staff has been completed.
RECOMMENDATION:
- In the course of the hearing the parties agreed that the resolution of this dispute would be advanced if the general principles that should apply in determining the pay and conditions of employment of transferring staff within the transferee employment were identified. Accordingly, this Recommendation is primarily intended to address that question and provide the parties with a further opportunity to resolve the issues forming the subject-matter of this referral in the light of the Court’s Recommendation on that central issue.
The Court notes that Paragraph 6.1.19 of the Public Service Agreement 2010 –2014 (PSA) provides, in relation the Health Sector, that an employee’s existing terms and conditions of employment will be protected if they are redeployed. That approach is in line with what has historically been the position of staff transferred within the Public Sector where agencies are amalgamated or where Civil Servants are assigned to newly-created agencies.
In the Court’s view that general principle should apply in this case. In line with that approach all existing terms and conditions of employment of transferring staff should be protected and should neither improve nor diminish by reason of the transfer. The Court recommends that the parties engage in further discussions in relation to the issues before the Court (other than those referred to below) with a view to reaching agreement based on the application of that general principle.
This Recommendation is without prejudice to the objective, enunciated in Paragraph 1.8 of the PSA, of achieving standardised terms and conditions of employment across the Public Service, the pursuance of which should be expedited by the parties.
The Court considers it desirable to make definitive recommendations on the following matters:- Position of those in Acting Positions
It is noted that all but 12 of those in acting positions would be regularised by application of the HSE’s proposal. In view of the small number of employees whose positions would not be regularised, the Court recommends that all transferring staff holding acting positions should be regularised from the date of transfer.
Assignment of Duties
For the avoidance of doubt the Court considers it appropriate to express its view that the assignment of duties appropriate to an Officer’s grade is a function of management. Nothing in this Recommendation is intended to circumscribe or diminish the exercise of that right in relation to transferred staff.
Options
The Court does not consider that a provision for optional transfer would be consistent with the terms or general intent of the PSA nor does the Court consider the provision of an exit package for those not wishing to transfer to be a viable option at this time.
- Position of those in Acting Positions
- Timeframe for Discussion
The Court recommends that the discussions referred to above should commence immediately and should conclude not later than mid-September 2011. The Court will remain available to the parties to resolve any issues on which agreement is not reached by that date.
Signed on behalf of the Labour Court
Kevin Duffy
15th July 2011______________________
SCChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.