Forwarded by Ciaran O'Neill/entemp on 20/09/2007
RECOMMENDATION (RECOMMENDATION NO. LCR18991)
Employer Party on Rec:Health Service Executive Worker Party on Rec: Psychiatric Nurses Association Irish Nurses Organisation
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Date Finalised: 20/09/2007 Date Issued:
Confidential: No Embargo:
CD/07/389 RECOMMENDATION NO. LCR18991
(CCc-052266-07)
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES :
HEALTH SERVICE EXECUTIVE
- AND -
PSYCHIATRIC NURSES' ASSOCIATION
IRISH NURSES ORGANISATION
DIVISION :
Chairman : Mr Duffy
Employer Member : Mr Grier
Worker Member : Ms Ni Mhurchu
SUBJECT:
1. Retrospection under Towards 2016.
BACKGROUND:
2. In September 2006 the Irish Nurses Organisation(INO) advised the HSE that the Union was not in a position to accept the terms of 'Towards 2016 as it was. The reason given for this decision was because the Union along with the Psychiatric Nurses Union(PNA) wanted to await the findings of the Labour Court in relation to their eight claims for improvements in pay and a reduced working week.
The Labour Court Recommendation 18763 issued on 9 November 2006. It was accepted by the HSE and rejected by both Unions.
Following a period of industrial action in April/May of 2007 the NIB put forward proposals which led to a settlement of the dispute. The NIB recommendation made reference to the procedures within 'Towards 2016' for dealing with issues regarding the application of its terms.
Sanction has issued for the payment of the first two phases of T2016 however, the Department have only indicated a willingness to approve the payment of the 3% with effect from the date of acceptance by each of the Unions. The Unions are seeking a retrospective payment of the 3% from December 2006.
The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 14th June, 2007.
UNIONS' ARGUMENTS:
3. 1. The position of the Unions throughout the industrial relations dispute has been to favour the resolution of the issues through procedure rather than through industrial action.
2. The Unions maintain that there is precedent within the public service for a national agreement on pay being applied in full to a
union which has not indicated acceptance of terms of that national agreement.
3. The Unions contend that there were no modernisation and change programmes initiated in the period relevant for the payment of the
3% which INO/PNA members did not fully participate in on an equal basis with the members of other unions and no union.
MANAGEMENT'S ARGUMENTS:
4. 1. 'Towards 2016' came into effect on 1st July 2006. The INO did not accept the terms of this agreement until 25th May 2007 and the PNA did not accept the agreement until 6th June 2007.
2. The Unions in seeking to have the terms of 'Towards 2016' applied to them retrospectively to 1st December 2006 are thus seeking full monetary recompense for a period of time when they totally ignored and were in flagrant breach of all the provisions of the agreement.
3. Management contend that concession of this claim for full retrospection to 1st December 2006 would have the effect of triggering a series of repercussive claim from unions whose members have been denied full retrospection.
RECOMMENDATION :
The issue which the Court is asked to decide arises out of the settlement of the dispute between the parties concerning nurses pay and conditions of employment. The settlement was facilitated by the National Implementation Body in May 2007.
The resolution of the issue before the Court presents difficult questions of interpretation of the Public Service Pay Agreement associated with Towards 2016 (the Agreement). In its approach to this issue that Court must take the Agreement as it finds it and try to give its provisions a practical meaning, taking account of how it has been applied in the past. The Court cannot, however, import into the Agreements provisions where are not there so as to deal with situations which were not specifically addressed by the parties to the Agreement.
The relevant provisions of the Agreement are contained at Sections 27.17,27.18 27.19 and 33.3.
Section 27.17 sets out the operative dates for each of the four increases provided for by the Agreement. In each case a fixed date is prescribed. There is no provision to substitute the operative date for the first phase with a date on which a particular Union may adopt the Agreement where that is later than the prescribed date.
Section 27.18 sets out the conditions precedent to payment of the increases provided for at Section 27.17. They include the absence of industrial action in respect of matters covered by the Agreement. Crucially, this Section provides that payment of the increases is dependent on verification of satisfactory achievement of the specified conditions through a process set out at Section 33.3.
Section 27.19 provides that in accordance with Section 33.3 a Secretary General may refuse to sanction the payment of any of the increases provided for by Section 27.17. The Section goes on to provide that if the matter which gave rise to the decision to withhold a payment is subsequently resolved the payment may be made from such date as the relevant Secretary General deems appropriate in the circumstances. Any such decision made by a Secretary General is reviewable by the Court.
Section 33.3 is of crucial importance since its terms govern the application of both Sections 27.18 and Section 27.19, which in turn govern the application of Section 27.17. Section 33.3 provides for the establishment of a Performance Verification Group (PVG) for each sector of the Public Service. The Section sets out in detail the role of the PVGs in verifying compliance with the terms of the Agreement by the various groups and grades within their remit. The most significant provision in this Section, for present purposes, is that each PVG must decide, on the basis of a report submitted to it by the relevant Secretary General, whether the specified conditions for payment of the increases have been met. While the ultimate decision on whether or not payment of an increase is warranted rests with the Secretary General, it is clear from the Section overall that a decision to withhold payment must be taken in conjunction with the PVG. It is equally clear that the combined effect of Sections 27.18 and 27.19 is that a decision to withhold payment can only be made in accordance with the procedures specified by Section 33.3.
The Agreement was adopted in September, 2006. The Court was told in the course of the hearing that all staff covered by its terms, whose
representative trade unions had ratified the Agreement, received the first phase on 1st December, 2006. Payment of this first phase was made without a requirement for performance verification in accordance with Section 33.3. This was because of the practical impossibility of putting the necessary arrangements in place before that date. Where there is a subsequent failure on the part of any grade or category to deliver on their commitments under the Agreement it is anticipated that the next phase increase will be withheld.
In relation to this case the INO accepted the Agreement on 25th May 2007 and the PNA on the 6th June 2007. It seems to the Court that on a strict construction of the Agreement they then became entitled to an increase of 3% from 1st December 2006. This could only be withheld or varied in accordance with Section 33.3. The provisions of Section 33.3 were neither invoked nor relied upon to justify the decision to confine payment to the date of ratification of the Agreement. It would seem to the Court that on this point there is a technical but nonetheless substantial basis upon which it could be held that payment from the due date should not have been withheld.
There are other pertinent considerations. Had both unions ratified the Agreement in common with all other unions in September, 2006, they would have received the disputed increase from 1st December, 2006. Had they subsequently acted in contravention of the Agreement by engaging in industrial action it is unlikely that the increase would have been withdrawn. In that regard it is significant that no deductions were in fact made from the salaries of those associated with these claims in respect of the period during which they were engaged in industrial action.
If, in accordance with the procedures prescribed by Section 33.3, there had been a subsequent finding of non-compliance with the conditions for payment of the increases during the period covered by the first phase, this could have resulted in a withholding of all or part of the second phase. That, however, is a moot point since the second phase increase was in fact authorised from the due date.
It seems to the Court that the real issue in this case centres on the fact that both Unions rejected the Agreement when it was ratified and instead pursued a campaign for improvements in pay and conditions outside the terms of the Agreement. That campaign included recourse to industrial action which the HSE claims was disruptive and costly. Against that background the HSE contends that in equity the members of both Unions should only be entitled to the increases provided for by the Agreement from the date on which they undertook to be bound by its terms. That is a cogent argument from an industrial relations perspective. However, the Agreement could have expressly provided that the increases cannot apply to any grade or category from a date earlier than that on which they agreed to abide by its terms. No such express provision was made and the Court has considerable doubt as to whether it could imply such a condition.
Both Unions have now, by their acceptance of the Agreement, committed themselves to the maintenance of industrial peace in their future relations with the HSE. It is further assumed that both Unions have, with whatever modifications were agreed as part of the NIB process, accepted Recommendation 18763 in settlement of all of the claims to which that Recommendation relates. Moreover, the Court is satisfied that the INO and PNA have cooperated with the action plan for the Health Sector to the same degree as all other Unions.
Against that background, and on a strict interpretation of the relevant provisions of the Agreement, the Court has concluded that the Unions are entitled to payment of the disputed 3% increase, in this instance, with effect from 1st December 2006.
Finally, the Court would suggest that the parties to any future Agreement should make appropriate clear provision to deal with the type of situation which gave rise to this referral.
Signed on behalf of the Labour Court
Kevin Duffy
20th September, 2007 ______________________
MG.
Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon
Geoghegan, Court Secreta
Appendix:
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Edit History: Rev. Editor Edit Date
13. Ciaran O'Neill/entemp 20/09/2007 12:57:21
12. Ciaran O'Neill/entemp 20/09/2007 10:15:50
11. Ciaran O'Neill/entemp 20/09/2007 10:15:11
10. Ciaran O'Neill/entemp 19/06/2007 12:42:57
* Only past five edits are shown
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