FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DAUGHTERS OF CHARITY (ST ANNE'S ROSCREA) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Breach of Outsourcing Provisions of the Public Service Agreement re: Use of Agency Workers
BACKGROUND:
2. This case concerns a dispute between Daughters of Charity (St Anne's Roscrea) and SIPTU in relation to an alleged breach of the Public Service Agreement 2010-2014 vis a vis the use of agency workers. The Union's position is that management must consult with staff and offer any additional work to them in the first instance prior to employing agency workers. The Union contends that the rates payable to agency workers are less than rates payable to staff which may lead to agency workers becoming the preferred option in the future. Management's position is that it has always used agency workers to assist its staff when necessary and that it is not in breach of the Agreement.
The dispute was not 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 matter was referred to the Labour Court in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 24th February, 2011.
The following is the Court's Recommendation.
RECOMMENDATION:
This dispute before the Court concerns an assertion by the Union that the employer contravened the Public Service Agreement 2010-2014. Specifically the unions contends that the employer is utilising the services of an employment agency to meet some of its staffing needs, which it claims were hitherto provided by directly employed staff, and that this constitutes outsourcing within the meaning of the appendix on Service Delivery Options contained in the Agreement. The essence of the Union’s claim is that the employer was obliged by the Agreement to consult with it before engaging the services of Agency for this work.
The employer denies that it acted in breach of the Agreement. Firstly it contends that it has always used agency staff to augment the services provided by its direct employees. Secondly, the employer contends that the provisions of the Agreement relied upon by the Union are not applicable to the use of agency staff in the Health Service.
Having regard to what was referred to it by the Union the fundamental issue before the Court relates to whether or not the use of agency staff in the health sector constitutes outsourcing within the meaning of the Appendix on Service Delivery Options contained within the Public Service Agreement 2010-2014. That raises a fundamental issue about the intention of the parties when they agreed to the wording of the Appendix in issue.
Following the ratification of the Public Service Agreement 2010-2014, the Court met with the Implementation Body established by that Agreement to clarify the role of the respective Bodies in resolving disputes concerning the implementation of the Agreement. Subsequently, the Implementation Body advised the Court that where a fundamental issue is raised by a party to a dispute as to the intention of the Parties to the General Agreement the matter should be referred to the implementation body. They went on to advice that in such a case the views of the Implementation Body as to the intention of the parties should be confirmed to both sides and included in the material submitted to the Court.
The Court is satisfied that the core question in this case raises a fundamental issue which will have implications across the health sector. In these circumstances the Court is of the view that, in accordance with the Agreement itself, that issue should be referred to the Implementation Body before it is considered by the Court.
Accordingly the Court recommends that the question at issue in this case be referred to the Implementation Body for its opinion.
Signed on behalf of the Labour Court
Kevin Duffy
14th March 2011______________________
AHChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.