FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : GALWAY COUNTY COUNCIL (REPRESENTED BY LGMA) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. Taking of Annual Leave and Annual Leave Arrears.
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 6 November 2018 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place 6 March 2019.
UNION’S ARGUMENTS:
3. 1. The Council have allowed this situation to fester and there is now a substantial amount of annual leave owed to the Union's members.
2. It is only right that the outstanding annual leave that is owed should now be either paid or accommodation should be made where this leave can be taken going forward until it is cleared.
3. Some Fire Fighters have up to 100 days annual leave to take.
EMPLOYER'S ARGUMENTS:
4. 1. The Council believe that this matter is more appropriately addressed under the provisions of the Organisation of Working Time Act.
2 The Council believes that it is ultimately a matter for the employer to determine when leave is taken, and the primary objective of the Council is ensuring that there are sufficient crew numbers to deliver a fire service.
3. Management is firmly of the view that if current agreements are honoured by the Firefighters that the leave system can be managed within current resources.
RECOMMENDATION:
The issues in dispute between the parties concern the taking of Annual Leave and arrears of Annual Leave for the Galway based retained firefighters. LCR 20683 noted that the parties concluded an agreement in 2011 that provided for a system of self-managed leave cover within the retained fire services. It went on to state that the parties should engage over a three- month period to develop a new leave cover agreement and in the event, agreement should not be reached the issues should be referred back to the Court.
It is the Employer’s contention that they have been seeking to progress these issue at a local level with little or no success. The arrears that have accrued are unstainable and in the Employer’s view a question arises as to whether or not the arrears have been lost as the Council applies a use it or lose it approach to the taking of annual leave. It is their position that annual leave that is not used expires. The Employer expressed a view that staff were deliberately accruing leave in the expectation that arrears that accrued would be ‘bought’ out. The Employer is clear that in respect of annual leave that accrues under the Organisation of Working Time Act it can only ‘buy out’ outstanding annual leave if the Worker has left the organisation. It is the Employer’s contention that the Workers have failed to fully engage with the 2011 agreement in a positive manner or in a manner that would facilitate the Employer allocating leave in accordance with the agreement.
It is the Employer’s submission that they are obliged to ensure that staff take their legally set annual leave entitlements within the annual leave year and that they cannot continue to operate in the current manner. It is their position that should this issue not be finally resolved they will have no option other than to assign annual leave to staff.
The Unions position is that the issues in relation to annual leave stem from a reduction in the number of retained firefighters thus making it difficult for staff to take their leave. The Union do not dispute that an agreement was reached in 2011 which required a firefighter to identify another fire fighter to cover when they were on annual leave. However, it is their position that since the number of retained firefighters has reduced this requirement is not practical. In relation to the arrears it is the Union’s position that as the Workers’ were not sanctioned to take annual leave and in fact were often told at local level that their applications for leave would not be signed off on then the arrears of annual leave cannot expire. The Union did not dispute that legally the Employer cannot buy out annual leave arrears arising from the entitlements set out under the Organisation of working time Act. It is the Union’s position that the number of City Retained Fire Fighters are going to have to be increased for the existing system to work.
The Court having read the submissions of both parties and listened to the oral submissions believes there are two distinct issues,1) the taking of annual leave within the leave year, and 2) the arrears that have built up to date. The Court believes that it is imperative that issue one is resolved before it turns its attention to issue two.
To this end the Court recommends that the parties actively engage over the next six weeks to come up with a workable solution for the 2019/2020 annual leave year. While the Court does have some concerns about an agreement that places the responsibility for finding a replacement on the person who is taking the annual leave the Court notes that the Union do not seem to favour a system whereby the Employer allocates leave. It is the view of the Court that the parties working jointly are best placed to come up with a workable system that is acceptable to the Worker’s and the Employer. Should the parties come up with an agreed system the Court should be notified, and it will then consider and issue a recommendation on the arrears issue.
Should the parties fail to reach an agreed outcome within six weeks the outstanding issues should be referred back to the Court for a definitive recommendation.
Signed on behalf of the Labour Court
Louise O'Donnell
2 April 2019______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Michael Neville, Court Secretary.