FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : COMMISSIONER, AN GARDA SIOCHÁNA - AND - GARDA SUPERINTENDENTS (REPRESENTED BY THE ASSOCIATION OF GARDA SUPERINTENDENTS) DIVISION :
SUBJECT: 1.Claim For increase in value of Availability Allowance. It is a highly unusual situation that parties who are party to a collective agreement containing agreed dispute resolution arrangements aligned to the statutory framework would come before the Court outside the arrangements set down in Section 26(1) of the Industrial Relations Act, 1990. Under that statutory provision, a hearing of the Court is convened only in circumstances where both parties have requested the Court to investigate their trade dispute. It is clear that the statutory framework, which provides voluntarily accessible institutional supports to parties involved in a trade dispute, is founded on the proposition that the Court should be viewed as the Court of last resort and, against that background, that parties would come before the Court only where both parties believe that an investigation by the Court of their trade dispute has the potential to result in a Recommendation which, through its voluntary acceptance by the parties, would resolve the matter. In this case, a mechanism which clearly has other purposes, has been the basis for a unilateral referral of a trade dispute to the Court which has resulted in both parties, who are party to a collective agreement containing dispute resolution arrangements, appearing before the Court at a hearing and making submissions as to how the Court should view the matter. A consequence of this situation is, apart from the fact that the employer has not requested the Court to investigate the trade dispute, that notwithstanding the fact that the parties have utilised the services of the Workplace Relations Commission provided in accordance with Section 25(1) of the 1990 Act, the Court is deprived of an insight into that conciliation process by way of a report from the Commission given to the Court under Section 26(1)(a) of that Act. The Association is seeking an increase of 46% in the current €8,500 p.a. approx. value of the availability allowance and is seeking that such an increase be applied with effect from 1stJanuary 2018. The employer has advised the Court that the Association’s submission to the Court, provided in the days before the hearing, is the first notification it has had that the claim before it amounts to 46% of the value of the current allowance. The employer, following a review which took place against the background of agreed terms of reference, is of the view, for the reasons set out in that review, that no operational basis exists for an increase in the availability allowance paid to members of the Association. In setting out that position the employer made clear to the Court that it had not, for reasons outlined to the Court, had access to certain detailed quantitative information which might facilitate a comprehensive assessment of all of the operational factors which might be relevant to the claim before the Court. It confirmed to the Court that, when such quantitative information becomes available, it might be possible that the position of the employer could be reassessed and developed. In addition to the dispute between the parties in relation to the validity of a claim for an increase in the availability allowance, the parties are disagreed as to the potential for implementation of an increase in the context of public pay policy and the current Public Sector pay agreement entitled ‘Building Momentum’. The Association is not a party to that agreement. The employer has submitted that any concession to the claim before the Court outside of the arrangements contained in the ‘Building Momentum’ pay agreement, would be in contravention of Government pay policy and would threaten the entire pay agreement concluded with all public sector workers but not with the Association. The Court did not have the benefit of a submission on this aspect from the Trade Unions representing public sector workers who are party to the ‘Building Momentum’ pay agreement. The Association rejected the assertion of the employer in this respect. The employer, while submitting that it will not, by reason of Government pay policy, be able to countenance any increase in the value of the availability allowance if the Association remains outside the ‘Building Momentum’ pay agreement, submitted that the agreement provides a mechanism whereby sectoral bargaining can take place as an alternative to a 1% general pay increase. The employer submitted that, if the Association were to become a party to the ‘Building Momentum’ agreement and decide to engage in sectoral bargaining, an outcome equivalent to an increase of approximately 10% of the value of the current availability allowance may be possible. The Association submits that the matter before the Court has been the subject of arbitration in April 2018 which decided that a review take place “at the earliest realistically feasible time”; followed by a review which was completed in two stages - the first completed in December 2020 and the final stage completed in August 2021. In those circumstances the Association submits that the matter before the Court should be addressed separately from any provision of the ‘Building Momentum’ pay agreement. The Association submitted that the Claim before the Court far pre-dated the conclusion of the ‘Building Momentum’ pay agreement and that the process following on from the 2018 arbitration had been delayed and obstructed by the employer. The Association also submitted that the review process which was conducted was not in accord with the process understood to have been in prospect when terms of reference were agreed between the parties. The first stage of the review involved Garda Management, the Department of Justice and the Association and resulted in a Recommendation for implementation of a 25% increase in the value of the availability allowance. That stage of the review was signed off by the Commissioner and the Garda Executive. The final stage, which involved Garda Management, the Department of Justice and the Department of Public Expenditure and Reform, did not result in a recommendation for an increase in the availability allowance at all. The Court is not satisfied that engagements to date in relation to these matters has been effective in terms of addressing the two areas of difference between the parties, viz. the operational validity of the claim for an increase and the means of implementation of any increase that might be agreed in the context of public service pay agreements. The Court is fortified in this belief by the assertion of the employer at the hearing that, prior to receiving the Association’s written submission to the Court, it had not been aware that the claim of the Association amounted to a claim for a 46% increase in the value of the allowance. The Court is further confirmed in its view in relation to engagements between the parties by the fact that, rather than a joint request to the Court to investigate the trade dispute made under section 26(1) of the Act of 1990, the matter has come before the Court as a unilateral referral by the Association made under section 20(1) of the Act of 1969. In the context of the collective relationship between the parties, the Court is concerned that a definitive recommendation on the matter by the Court would be binding on one party only. It is difficult to see how, in the context particularly of the parties’ collectively agreed dispute resolution mechanisms, such a circumstance is reflective of the principle of voluntarism in collective bargaining and the public policy concept of the Labour Court as “the Court of last resort” in the statutorily provided industrial relations trade dispute resolution framework. A further concern arises from the assertion by the employer that a concession to the claim of the Association would be contrary to Government pay policy and would have the consequence of imperilling the “Building Momentum” pay agreement encompassing over 300,000 public servants. In all of those circumstances, the Court recommends that the parties return to their agreed dispute resolution procedure and engage effectively, with the support of the Conciliation Service of the Workplace Relations Commission, to seek agreement on the Association claim. That engagement should be underpinned by the availability of all relevant quantitative and qualitative data and operational information so as to allow a comprehensive and sound assessment of the matter by the parties. In addition, the parties should address the implementation issues arising from Government pay policy and the fact that the Association is not a party to the “Building Momentum” pay agreement. The employer has asserted that, in circumstances where the Association is not a party to ‘Building Momentum’, no possibility exists of the application of an increase in the value of the availability allowance in the lifetime of the current public sector pay agreement. Should the parties fail to find agreement on these matters with the assistance of the Commission by 30th April 2022, the matter should be referred by the parties to the Court under section 26(1) of the Act of 1990 for a definitive recommendation by the Court. The Court so recommends.
NOTE Enquiries concerning this Recommendation should be addressed to Orla Collender, Court Secretary. |
