LCR23185

PARTIES:

DIVISION:

SUBJECT:

Complaint under Section 26(1) of the Industrial Relations Act 1990.

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 14 June 2024 in accordance with Section 26(1) of the Industrial Relations Act, 1990.          A Labour Court hearing took place on 29 August 2025.   

UNION'S ARGUMENTS.

1. Payment of the award with effect from 1st June 2024 is clear confirmation that all of the workers and ex-workers within the scope of the Review Body were entitled to payment of Report No 42 recommendations.
2. All obstacles cited (technical reasons and FEMPI restrictions) are no longer applicable to the payment of the award in full.

EMPLOYER'S ARGUMENTS.        

1. The Union have indicated that they are seeking full retrospection for all affected individuals. This means that if granted, arrears would be applied for up to 17 years in certain instances with significant costs attaching to same.
2. The HSE can only apply rates of pay from dates sanctioned by the Department of Health and with the approval of DPER. There is no approval to apply the revised rates any earlier than 1st June 2024.   

DECISION:

The issue in dispute between the parties is in respect of the retrospective application of the Public Sector Review Body Report number 42 dated 14 September 2007. The Employer agreed at conciliation under the auspices of the WRC to apply the pay increase effective from 1 June 2024, and it was jointly agreed to refer the issue of retrospection to the Labour Court for a recommendation. 

The Union submitted that the award was applied to all other Civil and Public Servants at the appropriate level with effect from September 2007. Sanction for the cohort of workers covered by this claim was granted by the Department of Finance in April 2008. In 2011 the Labour Court issued a recommendation to the effect that the first phase of the award should be paid. However, that recommendation was not implemented by the Employer. While the employer seeks to rely on the FEMPI No.2 Act the Union does not accept that this presents a barrier to retrospective payment of the award. This was accepted by the HSE in its own submission to the Department of Health in 2015 while seeking payment of the award.  In any event FEMPI N0.2 Act section 6 provides for exemption in certain circumstances. The Union notes that in LC22454 Area Directors of Nursing in Mental Health Services no barrier was raised to the payment of ten years retrospection during period that FEMPI applied. The Union on behalf of its members is seeking full retrospection to the effective date of September 2007.

The Employer submitted that the increases awarded to this cohort of health sector staff were not paid because the requisite sanction never issued reflecting the significant economic downturn which occurred in 2008 and the subsequent introduction of FEMPI legislation. Labour Court recommendation LCR 19986 in January 2011 could not be progressed because of FEMPI. In early 2023 management advised Forsa that this issue could only be progressed in the broader context of Public Sector pay negotiations.

Following a conciliation at the WRC on June 4, 2024, the WRC recorded the following agreement between the parties “The terms of Report 42 to be implemented for those affected from 1 June 2024.” The Employer set out the challenges the FEMPI legislation raised for it and noted that in a letter dated 7 January 2025, the Court determined that it did not have jurisdiction to make a legal decision determining whether the FEMPI Act prohibits retrospection to any date prior to 1 July 2021.

 The parties could not agree on the impact or otherwise of FEMPI to retrospection prior to that date. All individuals with an entitlement have benefited from the salary enhancement since 1 June 2024. The Employer at this stage has no approval to apply the revised rates any earlier than 1 June 2024. Management noted that in terms of precedent cases the Court has awarded three years retrospection in LCR 22718 and in LCR 22970, 2.5 years retrospection. It is the Employers position that the Unions claim for retrospection back to 2007 is without merit.

The Court having considered the submissions of the parties and the unique circumstances of this case (it has run for 18 years), including the differing positions in respect of the impact of the FEMPI legislation on retrospection, recommends that retrospection should be paid to 1 July 2021.

The Court so recommends.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
2 October 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Mr Aidan Ralph, Court Secretary.