FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(2), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNIVERSITY COLLEGE CORK - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Breach Of T16
BACKGROUND:
2. This dispute concerns a decision not to award full retrospection of 'Towards 2016' wage increases because of the Workers' alleged refusal to cooperate with the introduction of a new roster.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, 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 12th May, 2011.
UNION'S ARGUMENTS:
3. 1. The Workers cooperated fully with the introduction of the new roster.
2. Any delay caused was due to the College's failure to produce the new roster and its introduction of new demands.
3.Other Staff who refused to coperate with change and actually engaged in industrial action received the 'Towards 2016' wage increases in full.
EMPLOYER'S ARGUMENTS:
4. 1. The Workers declined to cooperate with change while the issue was being processed through the normal industrial relations procedures.
2. This was a clear and deliberate breach of Clause 28.13 of 'Towards 2016'.
3.The College acted in a fair and reasonable manner.
RECOMMENDATION:
The matter before the Court under Section 20(2) of the Industrial Relations Act, 1969 relates to the alleged breach ofTowards 2016. The Union’s claim on behalf of five Library Departmental Operatives for retrospective payment of 3 pay increases – 2% from 1st December 2006, 2.5% from 1st September 2007 and 2.5% from 1st March 2008, as specified in paragraph 27.17 ofTowards 2016. These dates, which are earlier than dates applying for other categories in UCC, were confirmed by management as the correct applicable dates for the Library Departmental Operatives involved in this claim. Justification for the increases was not at issue, the only question before the Court concerned the level of retrospection which was dependent on verification of compliance by the Library Departmental Operatives with the terms of the Agreement.
Management informed the Court that it was not precluded by the terms of paragraph 1.27 of the Public Service Agreement 2010 – 2014 in processing the claim.
Section 27.18 sets out the conditions precedent to payment of the increases provided for at Section 27.17. This Section provides that payment of the increases is dependent on verification of satisfactory achievement of the specified conditions through a process set out at Section 33.3.
Section 27.19 provides that in accordance with Section 33.3 a Secretary General may refuse to sanction the payment of any of the increases provided for by Section 27.17. The Section goes on to provide that if the matter which gave rise to the decision to withhold a payment is subsequently resolved the payment may be made from such date as the relevant Secretary General deems appropriate in the circumstances. Any such decision made by a Secretary General may be reviewed by this Court.
Section 33.3 provides for the establishment of a Performance Verification Group (PVG) for each sector of the Public Service. The Section sets out in detail the role of the PVGs in verifying compliance with the terms of the Agreement by the various groups and grades within their remit. This section provides that each PVG must decide, on the basis of a report submitted to it by the relevant Secretary General, whether the specified conditions for payment of the increases have been met and the PVG may decide to withhold payment. An Education Sector Performance Verification Group (ESPVG) was accordingly set up. The combined effect of Sections 27.18 and 27.19 is that a decision to withhold payment can only be made in accordance with the procedures specified by Section 33.3.
The 2004 Revised Action Plan for the five Library Departmental Operatives included proposals for modernisation/change agenda in accordance with the terms of Sustaining Progress, these proposals included changes to the rosters worked to introduce a 5 over 7 day roster. The issue was the subject of a number of conciliation conferences and on 5th October 2007 when both parties agreed to the introduction of the new 7-day roster. The outstanding matters at that point related to the drafting of a workable roster that conformed to the legal requirements of the Organisation of Working Time Act, 1997. A dispute concerning the rosters persisted between the parties for a period of almost two years and it was not until the end of July 2009 that the matter was finally resolved, at which point the Secretary General wrote to the ESPVG stating that the Library Departmental Operatives were in compliance with the National Wage Agreement. The ESPVG then wrote to the University informing it that implementation of the outstanding pay increases provided for in Section 27.17 was “now warranted with effect from 29th July 2009, the date on which co-operation was fully restored.”
The Union disputed the effective date of implementation and sought retrospection back to the effective dates set out above as it submitted that the fault of agreeing workable rosters in line with statutory requirements, lay firmly with the University.
Having examined the circumstances whereby there was a delay in reaching final agreement on the new 7 day roster the Court notes that at no point did the University formally put the Union on notice that the Library Departmental Operatives were regarded as being in breach of their obligations such as to warrant the withholding of increases due under the Agreement. The Court is of the view that had it done so the substantive issue giving rise to this dispute could have been quickly and definitively resolved.
The Court is satisfied that an agreement was reached between the parties on the introduction of the new 7-day working arrangement on 5th October 2007, however, the delay which ensued in agreeing an appropriate roster was inexcusable and management’s failure to impress upon the Library Departmental Operatives the seriousness of that delay and the likely consequence for future pay increases, leads the Court to the conclusion that that the decision to withhold retrospection of the increases in issue after October 2007 is not warranted. Accordingly the Court recommends that retrospection of the increases in pay as outlined above should be paid retrospectively back to 5th October 2007.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th May, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.