LCR22818

CD/23/252                                                                CCCAM- 100802-23 JLC ERO 1

RECOMMENDATION NO. LCR22818

INDUSTRIAL RELATIONS ACTS 1946 TO 2015

SECTION 42B(4), OF THE INDUSTRIAL RELATIONS ACT, 1946

 PARTIES :

EMPLOYER REPRESENTATIVE MEMBERS OF EARLY YEARS JLC - AND - WORKER REPRESENTATIVE MEMBERS OF EARLY YEARS JLC

DIVISION :

Chairman:   Mr Foley

Employer Member:  Mr O'Brien

Worker Member:  Mr Bell

SUBJECT:

1. Failure of Early Years Joint Labour Committee to agree on formulation of proposals for amendment to Employment Regulation Order

BACKGROUND:

2. This matter was referred to the Labour Court on 16 August 2023 by the Chairman of the Early Years Joint Labour Committee in accordance with the provisions of Section 42B of the Industrial Relations Act 1946. A Labour Court Hearing took place on 4 September 2023.

RECOMMENDATION :

This matter comes before the Court as a referral by the Chairman of the Early Years Joint Labour Committee (the JLC) in accordance with the provisions of Section 42B of the Industrial Relations Act 1946 (the Act). She has advised the Court that the referral was made at the request of the worker representatives of the Committee and that the employer representatives were agreeable to that referral. Section 42B of the Act, in relevant part, makes provision as follows:

42B(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.

(5) The Court shall, not later than 21 days after receipt of a submission under subsection (4), hear the members of the joint labour committee.

(6) The Court shall, not later than 14 days after a hearing under subsection (5), make a recommendation to the joint labour committee.

(7) When making a recommendation under subsection (6), the Court shall—

(a) be satisfied that the terms of the recommendation would promote harmonious relations between workers and employers and avoid industrial unrest, and

(b) have regard to the following:

(i) the representations made by the parties at the hearing;

(ii) any relevant code of practice for the purposes of the Industrial Relations Act 1990;

(iii) the economic and commercial circumstances in relation to the sector to which the joint labour committee relates;

(iv) the 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;

(v) the merits of the dispute and the terms upon which it should be settled.

The Court has been advised that the referral followed a failure on the part of the JLC to formulate proposals for an Employment Regulation Order. The Court convened a hearing of the members of the JLC within 21 days of the referral of the Chairman.

Background

The matters put before the Court relate to proposals made at the JLC to amend statutory instrument S.I No. 457 of 2022 Employment Regulation Order (Early Years’ Service Joint Labour Committee) Order No.1 2022 made by the Minister on 14th September 2022 and which took effect on 15th September 2022.

Both worker and employer representative members made proposals to amend the rates of pay contained in the ERO for the grade of Early Years Educators and School Age Childcare (SAC) Practitioners. The worker representative members proposed that rates of pay should be increased by 15% approximately. The employer representative members proposed that rates of pay should be increased by 3.5% approximately.

The worker representative members submitted to the Court that the rate of pay increase proposed by them would, having regard to the available sources of funding, not be cost increasing for employers in the sector. The employer representative members submitted that the rate of pay increase proposed by the worker representative members would have catastrophic effects on the sustainability of the sector and predicted wholesale closures of businesses if the rate of pay in the ERO was to be increased by anything approaching that quantum, with consequent loss of service to the public and loss of jobs in the sector.

Observation of the Court

The Court is gravely concerned at the failure by this JLC to find a means for the members to share any objective analysis of the financial and economic circumstances of the sector. In the absence of a failure to share any commonality of view on the underpinning realities of the sector it has been impossible for the parties to voluntarily find agreement on the sustainability of any increase in minimum pay rates in the sector.

It is the scale of the disagreement between members as regards foundational facts that leads the Court to express its grave concern as regards the inability of statutory office holders engaged in the statutory procedure which can lead to the formation of law to agree the basic facts of the operation of the sector.

The Court is asked by the members to accept on the one hand that the proposals of the worker representative members will have no cost increasing impact on employers in the sector while at the same time it is asked by the employer representative members to accept that an increase in rates of pay of anything approaching a fraction of the increase proposed by the worker representative members will have a catastrophic effect on the sector. These two submissions are irreconcilable.

It should be a matter of concern to each member of the JLC that such a conflict in relation to matters of fact has been put before the Court by the members who have agreed to ask the Court for its opinion as to how their disagreement in relation to the formulation of proposals should be resolved.

Submissions received by the Court

All members of the JLC were invited to make submissions to the Labour Court in advance of its hearing.

The worker representative members chose to be party to a submission made by one member who is an official of a trade union representing members to whom the ERO relates.

Five employer representative members of the JLC chose to be party to a submission made by one member who is an official of an employer representative body. Two of those five members, while asserting to the Court at its hearing that they wished to be party to this submission also made submissions of their own as individual members.

The Court was deeply concerned at much of the content of the submissions of these two members. The content in many respects was not relevant in any way to the statutory functions of the Court and was deeply inappropriate. The Court stated clearly at its hearing that much of the content of these two submissions was not being accepted by the Court on the grounds of their irrelevance and their unacceptability in their references to parties not present before the Court, and not carrying any statutory function in relation to the matter before the Court. 

The employer representative member who is an official of an organisation representative of employers made a statement to the effect that that organisation was not associated in any way with these submissions and regarded their content to be unacceptable in many respects.

The final employer representative member of the JLC made a submission on behalf of the employer representative body with which she is associated and, as such, did not wish to be party to the submission of the official of the employer representative body mentioned above. She made a submission on her own behalf.

Conclusions of the Court.

The Court, in formulating a Recommendation under the statute, is required to be satisfied that the terms of the recommendation would promote harmonious relations between workers and employers and avoid industrial unrest.

Both parties have submitted that an amendment to the rate of pay contained in the ERO will have a positive impact on harmonious relations in the sector. The worker representative member submitted that a failure to increase the rates contained in the ERO significantly will result in pay claims all over the country which could ultimately lead to industrial unrest.

The Court concludes that, against the background where all members of the JLC have submitted that the ERO should be amended so as to increase the rate of pay, a recommendation from the Court to increase the rate of pay will promote harmonious relations between workers and employers and will likely avoid industrial unrest.

The Court has had regard to (i) the representations made by the parties at the hearing; (ii) any relevant code of practice for the purposes of the Industrial Relations Act 1990; (iii) the economic and commercial circumstances in relation to the sector to which the joint labour committee relates; (iv) the 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; (v) the merits of the dispute and the terms upon which it should be settled.

The Court is clear that any recommendation to increase the rate of pay will not offend against any code of practice for the purposes of the Industrial relations Act, 1990 and that any code in existence at this time does not have direct relevance to the matters in dispute which have prevented the members of the JLC formulating proposals for an ERO.

The Court has been provided with submissions which conflict with each other as regards the economic and commercial circumstances in relation to the sector to which the joint labour committee relates. Having regard to its statutory obligation to have regard to these matters the Court can only conclude that (a) the parties agree that the sector can sustain an increase in the minimum rate of pay of at least 3.5% approximately (b) the sustainability from a financial and commercial perspective of increases beyond that level is gravely disputed by the members of the JLC, and (c) that the nature of enterprises in the sector varies significantly across the sector both in terms of scale, geographic location, turnover rates of staff in enterprises and financial performance.

The Court has heard submission from the members of the JLC contesting whether any workers in other employments are comparable for the purposes of Section 42B(7)(iv) of the Act with the workers to whom the ERO relates. The Court has had regard to the submissions of the members in this respect.

Recommendation of the Court based on the merits of the dispute.

The Court recommends that the JLC should formulate a proposal that the ERO should be amended so that the rate of pay set out therein is increased by approximately 5%, resulting in the following rate of pay:

Early Years Educators and School Age Childcare (SAC) Practitioners - €13.65 per hour

The Court so recommends.

                                                            Signed on behalf of the Labour Court

                                                               Kevin Foley

DC                                                          _________________________

14 September 2023                              Chairman

NOTE Enquiries concerning this Recommendation should be in writing and addressed to David Campbell, Court Secretary.