FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DEPARTMENT OF EDUCATION AND SKILLS - AND - 3,300 WORKERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION TUI) DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Contracts For Adult Education Tutors In The Educational And Training Boards.
BACKGROUND:
2. This dispute relates to a claim by both SIPTU and TUI for the "regularisation" of contracts for Adult Education Tutors in the Education and Training Boards in relation to establishment of a salary scale and the demarcation of "Tutor" and "Teacher" posts. The Unions state that the Employer is in breach of a "Chairman's note" and is seeking the Court require the Employer to make an offer on each of the issues as per the commitment by both parties in the relevant "Chairman's note".
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 7 January 2020 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court Hearing took place on 6 March 2020.
RECOMMENDATION:
This matter comes before the Court arising from a Chairman’s note which issued in 2015 in the course of engagements in relation to a proposed Public Service Agreement. That note recorded that ‘Management side agree to engage with the Staff side’in relation to four identified issues. Two of the identified issues have since been resolved by agreement between the parties following engagement.
The Court is asked to conclude that the employer has breached the terms of a Chairman’s note on the basis, as the Union side contends, that the commitment to engage contained therein required the employer to make an offer to the Trade Unions to address their two outstanding claims. The employer contends that it is unable to make an offer which carries a financial cost because of the existence of the PSSA which prohibits cost increasing claims and because it is prohibited from so doing by the Financial Emergency Measures in the Public Interest (FEMPI) legislation.
The employer asserts that its commitment as recorded in the Chairman’s note was to engage and not a commitment to make an offer in response to the Trade Union side claims.
The Court cannot conclude that, in industrial relations terms, a commitment to engage is a commitment to make a financial offer to resolve a trade dispute. It is common in the arena of industrial relations that a party against whom a claim has been served is unable by dint of circumstance to make an offer to the claiming party. In such situations, the responding party can be limited by virtue of resources or some other constraint, to engaging with the claiming party in order to share an understanding of the factors which cause the responding party to be unable to make an offer to resolve the matter. Such interaction constitutes engagement in industrial relations terms.
In the course of the Court’s hearing, the employer confirmed that when the Chairman’s note was concluded in 2015, it was understood that there would be a level of cost involved in resolving the matters in dispute. What was not understood at that time was the potential scale of the cost. It is clear therefore that, in 2015, the employer accepted that a level of cost would be required to be borne in order to address the Trade Union claims.
In those circumstances, the Court considers it reasonable to recommend that the employer, in the context of its understanding at the time of agreeing to the Chairman’s note, should identify the scale of cost it is now prepared or able to absorb to address the Unions’ claims and should formulate an offer within the parameters of that scale of cost. The Court makes this recommendation noting that the employer has asserted that it is constrained by FEMPI legislation and the terms of the current Public Service Stability Agreement. These constraints are a matter for the employer in the context of its formulation of any offer to the Trade Union side.
The Court, on the basis of the submissions of the parties, can accept that any offer could not, having regard for example to the contrasting nature of the roles, qualifications, flexibility and regulatory frameworks, involve an alignment with the Teacher scale. It is not for the Court to go further than this observation in addressing the nature of any offer which the employer might make.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Foley
TH______________________
19 March 2020Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Therese Hickey, Court Secretary.