FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ENABLE IRELAND - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Geraghty Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Claim for payment of retrospective incremental Pay.
BACKGROUND:
2. This dispute relates to payment of retrospective incremental pay.
The Union said that when the Workers started in 2008, they worked less than eight hours per week and were not entitled to increments. In 2012, their contracts were updated to reflect the increased hours they were working and from that point onwards the incremental scale should have applied to them.
The Employer said that the funding it received from the HSE had not increased over the last number of years with funding cuts of around €4.7 million since 2010. In March 2017 the Workers were placed on the top of the scale, backdated to January 2017, and offered the equivalent of two years' loss of incremental pay. This offer was rejected by the Workers. Since then the Employer has lost the funding to provide the service for which the Workers concerned were employed.
- 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 9 April 2019 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on 18 June 2019.
UNIONS ARGUMENTS:
3. 1. There is no dispute between the Company and Union as to the entitlement of the Workers to the increments.
2. The Employer has been aware of this issue for a long period of time and has done nothing to resolve this.
3 The offer of two years' compensation has been withdrawn by the Employer.
EMPLOYER'S ARGUMENTS:
- 1. In April 2018, the HSE notified the Employer of its intention to withdraw funding for the Pre-School Assistance Service, with effect from June 2018.
2. The withdrawal of the funding was unexpected as it was anticipated that funding would continue for at least another year.
3. The Employer is in no financial position to pay any back money in respect of the incremental scales without a funding commitment from the HSE, which is not forthcoming. The Employer is running a deficit with expenditure exceeding income.
RECOMMENDATION:
The Court has great sympathy for the case made for the workers. Indeed, the Court would accept that there is a strong case for full re-payment of all monies due to the claimants back to 2012. However, there are practical considerations which would render any such Recommendation by the Court, if it were to make it, to be unrealistic.
The particular function is no longer undertaken by the Employer. Therefore, the ability of the Employer to persuade the funder of the service, the HSE, to meet the funding required to fulfil the obligation to the workers is somewhat curtailed. The HSE did agree to an arrangement that would have facilitated the re-payment of two years’ value of the monies due and the Employer had agreed to make these payments in the most tax efficient way possible. In view of the circumstances, including the financial position of the Employer, the Court is of the view that this offer represents the most realistic means of ensuring partial restoration of what is due to the workers concerned. As the funder had agreed previously to enable funds to be released for this purpose, there is no obvious reason why it should not be possible to secure their agreement now to live up to that commitment.
The Court recommends that two years’ value of the money due to the workers concerned be restored to them in the most tax efficient way possible in full and final settlement of the dispute. The Court recommends further that the two parties approach the HSE to seek agreement to the provision of funds for this purpose.
Signed on behalf of the Labour Court
Tom Geraghty
CR______________________
24 June, 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.