FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : IRISH WHEELCHAIR ASSOCIATION (REPRESENTED BY ANTHONY KERR B.L. INSTRUCTED DOYLE SOLICITORS) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Pay Restoration In Line With Public Service
BACKGROUND:
2. This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 4th September 2017 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 31st October 2017.
UNION'S ARGUMENTS:
The Union sought pay restoration in line with the public sector. However, the employer had not paid the increase that fell due on 1st April 2017.
The Union argued that their members, while not public servants, have had to accept all pay cuts accepted by public servants from the period 2010 to 2014. The Health Service Executive (HSE) have direct influence on the pay levels of the organisation. As such, if pay is restored to Health Service Executive employees and public servants in general, it follows that employees of the Irish Wheelchair Association (IWA) should also benefit from said pay restoration.
EMPLOYER'S ARGUMENTS:
The Employer stated it was not in a financial position to meet the Unions claim. The Employer also stated that it was hindered in facilitating the Unions claim as The Department of Health is of the view that individuals engaged by section 39 organisations, such as the IWA, are not Employees of the HSE. Therefore, the Department is of the opinion that employees of the IWA are not entitled to the same terms and conditions regarding pay. The Employer also informed the Court that they had applied for additional monies in order to aid in facilitating the Union request, however, application has yet to be granted.
RECOMMENDATION:
The issue in dispute between the parties is the restoration of pay in-line with the terms set out for Public sector workers under the Lansdowne Road Agreement. The Union claims that the workers have a clear pay linkage with Public sector grades in the Health sector. The Employer’s position is that it does not dispute this but they are not in a financial position to make the necessary adjustments to staff pay.
The Union outlined the history of the pay linkage and the fact that staff while not recognised as public servants were forced to take the pay cuts arising from Budget 2010 and those agreed with the Public Sector Unions under “The Haddington Road Agreement”. They drew the Court’s attention to a number of previous Labour Court recommendations where the Court had held that if workers had benefitted from pay linkages when salaries increased then they could not seek to break from those linkages when salaries went down. The Union argued that the same logic should apply to the facts of this case and that as the staff had taken pay cuts in line with the Public Sector they were entitled to pay restoration in the same manner.
The Employer did not dispute that the pay linkage existed but argued that financially it was not in a position to pay the increases. They had paid the initial phase but at this point in time unless they received increased funding from their main funder they were not in a position to pay the phase which fell due on 1/4/17. They drew the Courts attention to correspondence dated 14thDecember 2009 and January 2010 they had received from their funder which instructed them at the time of the pay cuts to align their pay scales with the HSE pay scales. The net effect of which was to apply a pay cut.
They also pointed to engagements they were currently having with the funder and in particular, a letter dated 31stMarch 2017 which set out the requirement to process the pay restoration claim through the WRC and the Labour Court at which stage if the Labour Court were to rule in favour of the employer their request for additional funding could be progressed.
It appears to the Court that there is no dispute in relation to the merits of this claim and how it should be handled. The Employer indicated to the Court that they had sought but had not yet been granted additional monies and therefore were not in a position to accede to the Unions claim.
While the Court has some sympathies for the difficulties the employer is experiencing, it cannot accept that they are a basis for not implementing pay restoration in line with the Public Service agreement. The Court has given careful consideration to the submissions of both parties and is clear that the worker’s pay is clearly aligned with the HSE pay scales. In those circumstances the Court recommends the application of the pay increases set out in the Lansdowne Road Agreement with effect from the dates contained in that agreement.
It appears to the Court that one of the reasons that this matter is before it, is because the Employer feels obliged to do so, in order to satisfy an administrative requirement of the HSE, which is its main funder, rather than to seek a resolution. It is not a function of the Labour Court to provide an administrative endorsement to meet the requirements of a third party who is external to the case at hand and any process requiring such an endorsement could be considered, to be an abuse of the Industrial Relations process.
Signed on behalf of the Labour Court
Louise O'Donnell
JD______________________
20 November 2017Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Deegan, Court Secretary.