FULL RECOMMENDATION
PARTIES : DIVISION :
SUBJECT: 1.Outstanding Issues Requiring Agreement. 2.This matter was referred to the Labour Court on 23 March 2022 by the Chairman of the Early Years Joint Labour Committee. A Labour Court hearing took place on 7 April 2022. RECOMMENDATION: (4) Notwithstanding section 26 of the Industrial Relations Act 1990, where a joint labour committee has failed to formulate proposals or where it has formulated proposals and has failed to adopt such proposals, and the chairman is satisfied that no further efforts on his or her part will advance the committee in reaching agreement, the chairman may, and shall if requested by a member of the committee, submit the outstanding issues to the Court for its recommendation. The Chairman in her referral made clear that the matter before the Court was referred on the basis that the JLC had failed to formulate proposals for an Employment Regulation Order (ERO) and that no further efforts on her part would advance the JLC in reaching an agreement. The Chairman identified to the Court that the following were the ‘outstanding issues’requiring a recommendation from the Court: The pay rates for all grades / categories of staff within scope of S.I. No. 292/2021 - Early Years’ Service Joint Labour Committee Establishment Order, 2021 Sick Leave Payment of Wages Continuity of Service Grievance and Disciplinary procedures Bullying at Work Trade Union membership The Court, in accordance with the Act at Section 42B(5), invited the members of the JLC to a hearing to be held within 21 days of the date of referral by the Chairman at which the Court would provide an opportunity to be heard to each member of the JLC. The Court invited the members to provide the Court with written submissions in advance. In the event the Court received a submission from Ms Diane Jackson (a worker side member) on behalf of all worker side members of the JLC, from Ms Elaine Dunne (an employer side member), and from Mr Darragh Whelan (an employer side member) on behalf of five employer side members. The referral to the Court was on the basis that the parties had failed to formulate “proposals for an employment regulation order”. The submission of the worker side members made clear to the Court that it sought a recommendation from the Court that the JLC should propose four employment regulation orders for the sector. The submission made on behalf of five employer side members sought a recommendation from the Court that the JLC should propose two employment regulation orders. The Court spent some time at its hearing setting out to the members its view that it is a matter for the JLC as to how many proposals for an employment regulation order it might wish to submit to the Court under Section 42B(10) of the Act. The current referral under Section 42B(4) relates to a failure by the members to formulate proposals for “an employment regulation order” and it is not sustainable for the members to present the Court with submissions which purport to describe a failure to formulate proposals for either two (the employer side submission) or four (the worker side submission) employment regulation orders. The Court also set out a view that section 42B(12)(c) of the Act confers a jurisdiction on the Court to decide if proposals from a JLC for an ERO are in a suitable form for adoption and, in those circumstances, it is inappropriate for the Court, on foot of the current referral, to issue a non-binding recommendation to the members as regards whether they should decide to advance on the basis of two or four sets of proposals for an ERO. Any dispute between the parties as regards how many proposals they might wish to make to the Court for an ERO cannot, in logic or in the meaning of the Act, be an outstanding issue between the members of a JLC in their efforts to formulate “proposals for an employment regulation order”. Following a break in proceedings the worker side set out to the Court that the Court should regard the referral from the Chairman as relating to outstanding issues arising in the context of a failure of the JLC to agree proposals for an ERO for the category of worker entitled Early Years Educator and SAC Practitioner, which is the entry grade of employee in the sector. Ms Elaine Dunne advised the Court that she shared the view of the worker side members that the Court should regard the referral from the Chairman as relating to outstanding issues arising in the context of a failure of the JLC to agree proposals for an ERO for the category of worker entitled Early Years Educator and SAC Practitioner. Mr Darragh Whelan, on behalf of five members of the JLC, advised the Court that it should regard the referral from the Chairman as relating to a failure on the part of the JLC to formulate proposals for an ERO for all categories of worker in the sector. The Court noted the fundamental disjunction between members of the JLC as regards the scope of an ERO in respect of which they had failed to formulate proposals. The Court noted however that a majority of the members of the JLC asked the Court at its hearing to regard the referral from the Chairman as relating to outstanding issues arising in the context of a failure of the JLC to agree proposals for an ERO for the category of worker entitled Early Years Educator and SAC Practitioner. The Court also noted that a dispute as regards the number of ERO’s the JLC should propose to the Court for adoption was not referred to the Court by the Chairman of the JLC. The Court decided to proceed to develop a Recommendation for the resolution of outstanding issues arising from the failure of the JLC to agree proposals for an ERO for the category of worker entitled Early Years Educator and SAC Practitioner on the basis (a) that a majority of the members had asked it to do so, and (b) that its exercise of the jurisdiction under which it is considering the referral from the Chairman will not result in a recommendation which is binding in law but rather will result in a non-justiciable and non-binding recommendation of an industrial relations nature. That recommendation will fall to be considered by the members of the JLC who may choose to accept or reject it or, if no majority on acceptance or recommendation exists at the JLC, will be decided on the casting vote of the Chairman. The Court was fortified in its decision by the fact that the five employer side members proposed at the hearing that the Court should recommend a single minimum basic rate of pay for all workers in the sector of €12.20 notwithstanding that any ERO making such a provision would, by common case, have no meaning for the very significant numbers of workers in the sector who would be encompassed by such an ERO, including managerial grade workers, who currently receive rates of pay significantly in excess of that. The Court has given careful consideration to the written and oral submissions and representations made by and on behalf of the members of the members of JLC. Those submissions and representations set out (a) the members’ different assessment of the economic and commercial circumstances in relation to the sector, (b) the members’ different views as regards any relevant codes of practice for the purposes of the Industrial Relations Act, 1969, (c) the parties different views as regards whether there exists rates of remuneration and conditions of employment of workers in similar employment sectors, including workers in a sector to which another joint labour committee relates and, if such rates exist, what those rates are, and (d) the merits of the dispute and the terms upon which it should be settled. The Court has, in making the Recommendation set out below, had regard to entirety of the submissions and representations of the members of the JLC. The Court is concerned that, on the one hand, the employer side members predicted widespread closure of enterprises and loss of employment in the sector if the Trade Union side proposals or indeed any proposal in excess of the employer members’ proposed hourly rate of pay of pay of €12.20 for all workers in the sector was decided by the JLC to form part of its proposals for an ERO; and on the other, the worker side predicted that the economic and commercial circumstances of the sector were such as to mean that no negative consequences in terms of enterprise sustainability or retention of their employment by workers would flow from a decision by the JLC to formulate proposals for an ERO containing an hourly rate of pay of €14.45 for the entry grade category of worker in the sector. This failure on the part of the members to share in any way a common assessment of the factual circumstances of the economic and commercial circumstances of the sector is beyond what the Court would normally expect among parties who are, in fact, the supply side participants in the very sector about which they appear to have a vast difference of understanding. The Court notes that whereas the worker members and the employer members share no common understanding of the commercial and economic circumstances of the sector in respect of which they seek to agree an ERO, no ERO or sector specific regulation of rates of remuneration or terms and conditions of employment has previously existed at any time in the sector. The Court considers that, notwithstanding their different assessments of the sector in which they operate, there appears to be a shared desire among all of the members of the JLC to establish a framework for such regulation through the making by the Minister of an ERO. It may be that the stated positions of the members as regards, for example, rates of pay may represent, in their different views, an ideal destination in terms of the content of an ERO for this sector. A pragmatic reflection on the current scale of difference between the members of the JLC has, however, brought the Court to the conclusion that its Recommendation should represent a basis for members to consider the initiation of an ERO for the sector so as to provide an initial level of regulation against which the JLC might, in the future, seek to evolve and develop the pay and other arrangements of workers in the sector. Having regard to all of these factors and considerations the Court Recommends that: The rate of pay of Early Years Educator and SAC Practitioner should be €13.00 per hour in respect of all working hours to include contact and non-contact working hours. That no provision for sick leave arrangements in excess of the terms as understood of the impending statutory scheme should be included in the ERO which the members are seeking to formulate. The ERO should make provision for sick pay consistent with that impending statutory scheme. If, however, the statutory scheme is in place in advance of the adoption of proposals for an ERO by the JLC no duplicate provision should be included in the proposals for an ERO. That no provision beyond the existing statutory rights of workers in relation to continuity of service should be included in proposals for an ERO. • That no provision (a) of any existing Code of Practice enacted by Statutory Instrument (including any statutory Code dealing with grievance and disciplinary procedures and representation of workers involved in such matters) or (b) of any protection afforded to workers by Statute should be duplicated in proposals for an ERO for the sector. This approach against duplication within an ERO of existing statutory provisions can be referenced in the text of any proposal for an ERO including with a citation of relevant statutes or Codes. The Court is satisfied that the Recommendation set out above reflects the merits of the dispute before it and that its terms should promote harmonious relations between workers and employers and avoid industrial unrest in the sector. The Court so recommends.
Enquiries concerning this Recommendation should be addressed to Therese Hickey, Court Secretary. |
