LCR21722

• Tuesday 6th June 2017.
• Tuesday 12th December 2017.
• Friday 23rd February 2018.
• Thursday 12th April 2018.

The following is the Recommendation of the Court:-

RECOMMENDATION:

This dispute was referred to the Court by the Communications Workers Union (the Union) for investigation pursuant to s.2(1) of the Industrial Relations (Amendment) Act 2001 (the Act), as amended initially by the Industrial Relations (Miscellaneous Provisions) Act, 2004 (the Act of 2004) and subsequently by the Industrial Relations (Amendment) Act, 2015. The dispute concerns pay and conditions of employment of Emergency Call Answering Service (ECAS) Workers who are members of the Union and employed by Conduit Enterprises Ltd (the Employer).

The issues giving rise to the dispute were previously referred to the Workplace Relations Commission in accordance with the provisions of the Code of Practice on Voluntary Dispute Resolution made under s.42 of the Industrial Relations Act 1990. However, no resolution was achieved in that process and the Court received a report from the Workplace Relations Commission to the effect that no further efforts on its part would advance the resolution of the dispute.

The employer is a subsidiary of Conduit Global, a cloud based fully integrated BPO company providing multi-channel contact centre, back office, professional managed services. In Ireland the company manages two contact centre contracts in respect of Emergency Call Answering Services. The role of the ECAS is to respond to all incoming 112 and 999 calls to the Emergency Services in Ireland and to identify and pass the call through to the appropriate Emergency Service (Garda, Fire, Ambulance or Coast Guard and Air Traffic Control).

The Act at Section 2 (3)

• The Court shall decline to conduct an investigation of a trade dispute under subsection (1) where it is satisfied that the number of workers who are party to the trade dispute concerned is such as to be insignificant having regard to the total number of workers employed by the employer concerned in the grade, group or category to which the trade dispute concerned refers.

The Act at Section 5, Subsections (3) and (4) provides: -

• (3) The Court shall not make a recommendation providing for an improvement in the remuneration and conditions of employment of a grade, group or category of worker unless it is satisfied that the totality of the remuneration and conditions of employment of the workers concerned provides a lesser benefit to the workers concerned having regard to the totality of remuneration and conditions of employment of comparable workers employed in similar employments.

  (4) When considering if the totality of remuneration and conditions of employment of a grade, group or category of worker provides a lesser benefit to the workers concerned having regard to the totality of remuneration and conditions of employment of comparable workers employed in similar employments, the Court shall have regard to—

  (a) the totality of the remuneration and conditions of employment of comparable workers employed in similar employments (whether such comparable workers are represented by a trade union of workers or are not represented by a trade union of workers), and

  (b) the comparability of skills, responsibilities, physical and mental effort required to perform the work in which the workers are engaged.

In the event that the Court concludes that the totality of remuneration and conditions of employment of the claimant workers does provide a lesser benefit to them than that of comparable workers in similar employments it may, in accordance with the Act at Section 5(1), make a recommendation giving the Court’s opinion on the matter and, where appropriate, its view as to the action that should be taken having regard to the totality of remuneration and conditions of employment, dispute resolution and disciplinary procedures in the employment concerned. The Court decided to follow a step by step approach to the matter before it.

The Act, at Section 5(4) provides as follows:

• (4) When considering if the totality of remuneration and conditions of employment of a grade, group or category of worker provides a lesser benefit to the workers concerned having regard to the totality of remuneration and conditions of employment of comparable workers employed in similar employments, the Court shall have regard to —
  • (a) the totality of the remuneration and conditions of employment of comparable workers employed in similar employments (whether such comparable workers are represented by a trade union of workers or are not represented by a trade union of workers), and

    (b) the comparability of skills, responsibilities, physical and mental effort required to perform the work in which the workers are engaged.

Essentially the Trade Union asserts that ECAS Operators employed by the Respondent are comparable workers to civil servants employed as emergency call takers in An Garda Siochana, the emergency call takers employed by HSE ambulance service and the emergency call takers employed by local authority Fire Brigade Services. It contends that the Respondent employment is similar to that of the Civil Service, the HSE and the Fire Brigade Services insofar as those organisations deliver emergency call taking services as part of the emergency response arrangements for the State’s emergency services. The Trade Union asserts that the totality of the remuneration and conditions of employment of ECAS operators employed by the Respondent provide a lesser benefit to them having regard to the totality of remuneration and conditions of employment of the workers identified as comparable workers. The Respondent disputes all of the assertions of the Trade Union and contends that the workers concerned are not comparable to the identified comparators and the employment concerned is not similar to a public sector environment. The Respondent contends that its pay and conditions of employment are not out of line with what it regards as appropriate comparator workers and employments.

The Court therefore decided to consider first whether ECAS Operators employed by the Respondent are, having regard to the Act at Section 5(4)(b), comparable workers to civil servants employed as emergency call takers in An Garda Siochana, the emergency call takers employed by HSE and the emergency call takers employed by Local Authority Fire Brigade Services. It is only if they are such comparable workers can the Court proceed to consider the other tests set out in legislation as a condition precedent for the making of a recommendation by the Court. The Court, if appropriate, will then consider the matter of similar employment. If appropriate, the Court will then consider the relative benefit of the totality of remuneration and conditions of employment of the groups and only then consider whether it should make a recommendation addressing the matters set out in the Act at section 5(1).

Summary Position of the Trade Union

The Trade Union submitted that the comparability of ECAS Operators is clear in terms of skills, responsibilities, physical and mental effort. Pre-qualifications are identical for all roles in that no formal experience or qualifications are required. Training for ECAS Operators and Civilian call Takers of the emergency services are similar in that it is mainly ‘on the job’. The training is different for Ambulance Emergency Call Takers at the initial stage but both use scripts in the same manner while carrying out their roles and cannot generally deviate. They are both subject to monitoring.

All positions require responses to high levels of urgency in how they manage and handle emergency calls and transfer the calls on to be dealt with by the relevant emergency service and ultimately despatched. Neither the ECAS Operators or the comparators actually despatch the services. The ECAS Operators and the comparators all deal with an incoming call, identify location, ask relevant questions, respond and move it on. In the case of the comparators the calls are moved on to be dealt with by the relevant emergency service despatchers.

The Trade Union set out in its submission details of the job descriptions of the ECAS Operators and comparator workers in the services identified. In addition the Trade Union tendered evidence in the form of testimony from an ECAS Operator, a civil servant working as an Emergency Call Taker with An Garda Siochana and a HSE employee who had worked as an Emergency Call Taker in the Ambulance Service but now works as a Despatcher with the HSE Ambulance Service.

Summary position of the Respondent

The Respondent submitted that the emergency call taking staff of the emergency services are not comparable workers within the meaning of the Act with the workers concerned in this dispute. The Respondent submitted that the role of the claimant workers is so significantly different to that of the identified comparator workers as to mean that the identified workers are not comparable within the meaning of the Act.

The Respondent submitted that the claimant workers are, based on the skills, responsibilities, physical and mental effort, most closely aligned with a customer service operator in a call centre and the Respondent submitted that it had identified 15 such call centres in an internal review.

The legislation requires the Court to establish that workers are comparable. It does not require the Court to establish that they are identical. The Act essentially requires that the workers and those with whom they claim they are comparable be capable of comparison.

The Court notes the Respondent submission that the claimant workers are comparable to a range of call centre workers. This may be the case but the within dispute is presented to the Court as arising from a claim by the Trade Union that the Claimant workers are comparable to emergency call staff of identified emergency services. It is that claim and the dispute arising therefrom which is the subject of the Court’s consideration. The Court is not aware of a dispute between the parties as to whether the totality of remuneration and terms and conditions of employment of the claimant workers provide a lesser benefit than those of a range of workers employed as customer service agents in call centres.

It is not for the Court in the within dispute to move beyond the comparator workers identified by the claimant workers so as to identify some other workers in some other employments who could be contended to be comparable to the claimant workers. The Act requires the Court to address the claim giving rise to the dispute and not to address matters which are not in dispute between the parties.

The Court is satisfied that the workers concerned with this dispute are capable of being compared with those workers identified as comparators and consequently they are comparable.

The Trade Union submitted that the workers involved in the within dispute are employed in similar employment to those chosen as comparators.

The Trade Union submitted that all the workers concerned work in the emergency services in Ireland, all work in a ‘high-octane 365/7 day 24-hour environment to provide emergency services to the public’.

The Trade Union submitted that ECAS does not compete with the comparator employments and asserted that the ECAS does not have competitors. It was submitted that the size of the operations of the ECAS and comparators in terms of employee numbers engaged in emergency call answering is similar.

The Trade Union further submitted that the ECAS operators are classified through the NACE Code system for economic statistical purposes by the CSO as being part of ‘Fire Service activities’ and ‘ambulance service and other human health activities’.

The Trade Union submitted that the employment is in the same general line of business as the comparator employments, is a vital public service and cannot be considered to be a commercial call centre.

Summary position of the Respondent

The Respondent submitted that the ECAS and comparator companies are not in competition with each other and are not similar in size. The ECAS does not provide an emergency service and rather ‘forwards’’ calls to emergency call takers.

The Respondent submitted that the employments chosen as comparators are not ‘companies’ and are instead Public Sector organisations. The Respondent submitted that it is wholly inappropriate to compare the operation of a private company with that of public organisations and that workers employed by the Respondent company cannot be stated to be in similar employment with that of public sector organisations.

The Respondent submitted that ECAS should be regarded as falling with the category of ‘Activities of call centres’ in the context of the NACE classification system.

The Court considers that, in this regard, consideration should be given to such matters as the ‘line of work’ of the employers concerned, the nature and size of the undertaking and the context within which they carry on business. The Court notes that the comparator employments are public sector employments and the Respondent company is a private sector employment. The dynamics of the employer’s operational arrangements and market pressures is consequently very different in the Respondent company to those of comparator organisations. If the Court were to regard such considerations as determinative of the within matter the Court would effectively be concluding that the legislation is to be interpreted in such a way as to mean that it is inoperative in all circumstances where the disputing workers are employed in the private sector and the comparator employment is a public sector employment. The Court, having regards to the stated purpose of the legislation, cannot conclude that such a structural divide is intended to be imputed to the Act.

Consequently, the Court has considered such matters as the relative scale of the emergency call answering service of the Respondent and the scale of the call answering service of the comparator organisations insofar as such information has been put before the Court. The Court has also had regard to the fact that the business of all of the employments insofar as emergency call answering operations is concerned, is, through the process of engaging with callers over the phone, to provide a link in the chain of identical calls such that the callers can be connected with the emergency service personnel who will deliver the emergency service in operation. Each employment is, in real terms, delivering an element of the state’s emergency services to the public.

For these reasons, the Court, having regard to the Act at section 5(4) considers that the workers concerned in the within dispute are in similar employments to those with whom they seek to compare themselves for the purposes of the Act.

The Court concludes that in all cases the totality of remuneration and conditions of employment of the claimants provides a lesser benefit than the totality or remuneration and conditions of employment of the comparator workers.

The Court finds however that the demands upon HSE ambulance call takers in carrying out their work are significantly greater than the claimant workers in terms of skill, mental effort and responsibility. The demands upon both are similar in terms of physical effort.

The Court finds that the demands upon Civil Servants assigned as Garda emergency call takers are somewhat greater in terms of skill and responsibility but are similar in terms of physical and mental effort.

The Court finds that demands upon emergency call takers employed by Local Authority Fire Services are somewhat greater in terms skill and responsibility but are similar in terms of physical and mental effort.

In making the Recommendation that follows the Court has considered, taking account of the comparison of skill, responsibility, mental and physical effort, the degree to which the difference in totality of remuneration and conditions of employment is such as can be justified.

The Court is satisfied that the scale of difference between the totality of remuneration and conditions of employment of the workers concerned in this dispute and HSE emergency call takers can be justified. The Court however finds that the scale of difference between the totality of remuneration and conditions of employment of the workers concerned in this dispute and civil servants employed as Garda emergency call takers cannot be justified. Similarly the Court finds that the scale of difference between the totality of remuneration and conditions of employment of the workers concerned in this dispute and emergency call takers employed by Local Authorities cannot be justified.

In formulating this Recommendation the Court has taken into account the financial and commercial circumstances of the employer as described to the Court and has also sought to provide reasonable improvements in the totality of remuneration and conditions of employment in respect of the workers who are party to the dispute which do not undermine the viability of the employer’s business and the sustainability of the employment that it maintains.

The Court therefore recommends improvements as follows:

Pay

That the rate of pay of ECAS Operators should be adjusted to €11.50 with effect from the date of this recommendation. It should be further adjusted to €12.00 per hour with effect from 1^stJanuary 2019 and to €12.50 with effect from 1^stJune 2019.

Pension

The Court makes no recommendation with regard to pension.

Night Shift

That the rate of night shift premium should be 15% for every hour worked between 12.00 midnight and 8.00am. This to take effect from date of this recommendation. The Court makes no recommendation with regard to the current weekend rate arrangements.

Lead Operators

The Court understands that the rate of pay for Lead Operators is made up of the basic rate of ECAS Operator with an allowance in respect of time spent as a Lead Operator. The Court does not recommend a change to the Lead Operator allowance. The Court recommends that the current allowance should apply to the revised rate of pay for ECAS operator in accordance with the Court’s recommendation on pay above.

In making this recommendation the Court notes the application made by the Claimant’s solicitor to make the effect of the Recommendation retrospective to the date of claim. The Court cannot interpret the legislation as providing scope for such a Recommendation and no submission has been made which would imply that, within the construct of this Act, such a course of action is available to the Court.

The Court so recommends

Signed on behalf of the Labour Court



Kevin Foley
JD______________________
5 June 2018Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to John Deegan, Court Secretary.