LCR22967

PARTIES:

DIVISION:

SUBJECT:

Breach of Collective Agreement

BACKGROUND:

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 7th March 2024 in accordance with Section 26(1) of the Industrial Relations Act, 1990.

 A Labour Court hearing took place on 29th April 2024.

RECOMMENDATION:

The Court has given very careful consideration to the written and oral submissions of the parties.

The matter before the Court is a claim by the Trade Union that the employer is in breach of a 2013 “Framework Agreement” which was concluded in the context of the establishment of TUSLA. That agreement undertook to staff transferring to TUSLA that their terms and conditions of employment would not be affected by the transfer to TUSLA.

The Court understands that a job evaluation scheme was in place in the HSE up to 2008 when it was suspended and that it was re-activated in the HSE in 2016.

It is common case that staff of the HSE transferred to the newly established TUSLA in early 2014.

It is also common case that the parties, following their conclusion of the 2013 “Framework Agreement”, drew up a list of collective agreements and terms of employment which would effectively transfer with staff transferred to TUSLA. The suspended job evaluation scheme was included in that list according to the parties.

The suspended job evaluation scheme was re-activated in HSE in 2016 but not in TUSLA. Ultimately, an agreement was reached in 2020 between TUSLA and the Trade Union that the scheme would be re-introduced in TUSLA, and it was so introduced in early 2020. The scheme was subsequently suspended by TUSLA in late 2020 on the basis that issues as regards sanction from central Government departments had arisen.

The parties are agreed that the job evaluation scheme at issue is, according to its terms, a ‘cost neutral;’ scheme, insofar as any cost arising is incorporated within existing budgets.

Notwithstanding the fact that the scheme at issue was in place prior to 2008, the employer submits that the claim from the Trade Union for re-activation of the suspended scheme is a cost increasing claim in contravention of the parties’ Building Momentum collective agreement. The submission of the Union is that the claim is for re-activation of an existing agreement and consequently not a cost increasing claim within the meaning of the parties’ Building Momentum collective agreement.

The Trade Union submitted that this aspect of the dispute has been considered by the internal mechanisms for resolving differences as regards interpretation of the Building Momentum collective agreement, and that those mechanisms have concluded that the within dispute should be dealt with ‘on its merits’. This element of the Union’s submission is not contested by the employer.

The Trade Union confirmed to the Court that the current claim is that the employer is in breach of the 2013 Framework Agreement as a result of its failure to re-introduce job evaluation in the employment.

The Court has not been given to understand that the suspension of this scheme in 2008 was a result of a collective agreement.

Assertions have been made to the Court by the employer that any concession of the Trade Union claim could, unlike the re-activation of job evaluation in the HSE, result in widespread effects across the public sector.

The Court notes the assertion of the employer that in any case where a worker considers that work assigned to them is not commensurate with their grade, the matter should first be raised with the worker’s line manager who will, if appropriate, re-assign any such work to staff of the appropriate grade.

It is clear to the Court that the ‘Framework Agreement’ incorporated the transfer of the suspended Job evaluation arrangements in the HSE, from which staff of TUSLA originated, to TUSLA. The scheme remains suspended in TUSLA but has been re-activated in HSE.

Parties in the health sector generally jointly agreed in 2015, in a manner recorded by the then LRC, that the principle of job evaluation exercises applies in the Health Sector. At that time the parties committed to engagement to conclude ‘arrangement on the conduct and scope of such job evaluation exercises in the sector’.

The suspended scheme was re-activated in 2016 in the HSE, presumably as a result of the engagement which had been committed to in 2015 and recorded by the LRC. No submission has been made that the re-activation of the scheme in HSE offended against the agreed prohibition on cost increasing claims contained in the national public sector pay agreement in place at the time.

Given the circumstances of the referral now before the Court it is to be assumed that the re-activation of the scheme in HSE was sanctioned by relevant central Government Departments.

The Court is unaware of the degree to which there exists an operational need for a job evaluation scheme in TUSLA, insofar as it has no knowledge of the degree to which staff of TUSLA are, or believe themselves to be, engaged in work beyond their assigned grade or the degree to which the mechanism outlined by the employer and set out above for dealing with such situations has been called upon or utilised in the organisation.

The Court notes the fact that an agreement was concluded in 2020 between TUSLA and the Trade Union to re-activate job evaluation in the employment, and the fact that the implementation of that agreement was suspended on the basis of a lack of sanction. The Court also notes the submission of the Trade Union that no sanction is necessary for the re-activation of the job evaluation scheme.

The question of the necessity for sanction is not one for the Labour Court. The employer appears to accept that sanction from central Government departments is required in order for it to re-activate the scheme in TUSLA.

In all of the circumstances, the Court recommends that the parties engage appropriately to

(a) achieve a shared understanding of the degree to which job evaluation is operationally required in the organisation,

(b) identify the degree to which the means set out by the employer at the hearing to address concerns as regards inappropriate assignment of work to persons of a lower grade are utilised in the organisation,

(c) objectively reach a shared understanding of the potential level of cost of the operation of a scheme in the organisation and

(c) agree how any such level of cost might be met while achieving the fundamental agreed requirement that any scheme in operation in the employment must operate on a ‘cost neutral’ basis.

When the parties come to share an understanding on these basic underpinnings, the parties should engage at the WRC to attempt to reach an agreement on the matter of the operation of the suspended job evaluation scheme in TUSLA. If such an agreement is not achieved following engagement at the WRC, the matter should be referred again to the Court for a final definitive recommendation. Any such referral should be made within a period of three months of the date of this Recommendation.

The Court also recommends that any industrial action which might be in place in the employment in the pursuit of a potential agreement on the matter should be suspended pending the exhaustion of the procedure set out in this Recommendation.

The Court so recommends.

	Signed on behalf of the Labour Court
	Kevin Foley
SOC	______________________
24 May 2024	Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Sinéad O'Connor, Court Secretary.