FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE DIVISION :
SUBJECT: 1.10 Days Leave For Everyone 2. Health care workers faced higher risks and have been required to provide critical interventions and display more adaptability than most others in society during the pandemic.
2. Given the potential cost factor involved, appropriate consideration of any recognition measure can only take place in the context of wider budgetary considerations.
The employer, in its submission, has asked the Court to have regard in formulating this Recommendation, to the fact that the “Building Momentum” collective agreement of the parties provides at Clause 5.6.1 that there will be no “cost increasing claims for improvements in pay or conditions of employment” during the course of the agreement. The claim before the Court was described by the employer as being, possibly, the single most costly claim ever served on a single employer. The Trade Unions asserted that the submission of the employer to the Court was the first occasion the employer had raised any issue arising from clause 5.6.1 of the “Building Momentum” collective agreement. The Court has consistently, for sound industrial relations reasons, taken the view that collective agreements made between parties should be respected until replaced by a new agreement between the parties. The parties’ collective agreement “Building Momentum” makes provision for resolution of trade disputes in respect of matters covered by the agreement. The procedures set out therein provide that whenever engagement on such a dispute concludes at conciliation in the Workplace Relations Commission (WRC) without agreement, the parties will, rather than refer the dispute to the Court in the manner provided for by the statute under section 26(1) of the Industrial Relations Act, 1990 (the Act), refer the dispute to fora established by the parties for that purpose under their agreement. The parties to the dispute now before the Court are in fundamental disagreement as to whether the claim of the Trade Unions is a cost increasing claim within the meaning of “Building Momentum” and thus precluded by that agreement. The Court sought clarity from the parties as to the basis within their collective agreement for their joint request, following conciliation at the WRC, to the Court to investigate this trade dispute given that an element of the dispute was their disagreement as regards the application of clause 5.6.1 of “Building Momentum”. In particular, the Court sought clarity as regards their decision not to exercise the arrangements set out in “Building Momentum” for the resolution of such a trade dispute. The Court understands that at least one party believes that, notwithstanding the arrangements established by them in that agreement, certain trade disputes occurring during the lifetime of “Building Momentum” and relating to matters covered by that agreement may, under the agreement, be referred to the Court following conciliation at the WRC in accordance with Section 26(1) of the Act. The parties confirmed to the Court however that no written addendum to the “Building Momentum” agreement is in place to reflect such an understanding. The employer asserted that the referral of the within matter took place at the behest of the Trade Unions. The Court reminded the employer that, statutorily, any referral to the Court under Section 26(1) of the Act of 1990 could only take place on the basis that both parties to the dispute have requested the Court to investigate the dispute. The Court notes that the within claim is valued by the employer as carrying a potential cost of €377m to the Health Service without taking into account potential costs related to the means of implementation of a settlement. The Court notes also the Trade Unions’ assertion that, in putting such an estimated cost before the Court, the employer is not reflecting the reality of the Trade Unions’ position. The Trade Unions submitted that they sought a special recognition of the efforts of health Sector staff throughout the COVID-19 health crisis. The Trade Unions submitted that their claim was not prescriptive and emphasised that recognition of either a financial or non-financial nature has been a feature of other jurisdictions. The Trade Unions also drew the Court’s attention to what it saw as statements from relevant Ministers of Government supporting the proposition that special recognition should be given to health staff. The employer side acknowledged the work of health staff across the Health Service throughout the period of the crisis and submitted that it understood that Government is considering possible approaches to deal with this matter in Autumn 2021. The employer clarified its view that the hearing was taking place half-way through Autumn.The employer submitted that the claim before the Court cannot be considered outside the context of wider budgetary considerations and must also be considered in the context of potential implications for the wider health sector, the wider public service and the wider national picture. The Court, having regard to the dispute resolution procedures agreed by them as part of “Building Momentum”, is reluctant to make a definitive Recommendation in this matter. The Court believes that, in the interest of good industrial relations generally, dispute resolution arrangements across the public sector, including as regards matters covered by the agreement, should be clear and followed consistently by the parties. Those arrangements currently include an infrastructure established as part of “Building Momentum” which will have application until such time as the parties amend or conclude that agreement. If, as is asserted by one party to the within dispute, there is in place an understanding that certain disputes concerning matters covered by the agreement will, within the lifetime of the agreement, be referred to the Court following conciliation at the WRC, that understanding should be made widely known, including to the Court. It is clear that the Trade Unions believe that a special response to its claim is required in order to reflect the extraordinary efforts of health workers throughout the pandemic period. The Court believes that the effectiveness of efforts to resolve the matter will be enhanced by the achievement of clarity as regards what is possible in that context as soon as possible. The Court notes that the Trade Unions seek a Recommendation from the Court that the parties should engage constructively over a period of 14 days and that the employer has submitted that Government is intending to consider the matter during the Autumn which, according to the employer, extends to the end of October. In all of the circumstances therefore, and having particular regard to the need to respect the parties’ own collective agreement as regards resolution of disputes relating to matters covered by that agreement, the Court confines itself to recommending that the parties should make every effort possible to achieve clarity as regards potential arrangements to address the within claim at the earliest opportunity and in any event during the Autumn period referred to by the employer in its submission to the Court. In the view of the Court, the effort to achieve that clarity should include effective engagement with the Trade Union side through whatever arrangements the parties have in place for such engagement. The Court so recommends.
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