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FÁS Labour Court Recommendation

(21 Aug 2007)

FULL RECOMMENDATION

CD/06/1020 RECOMMENDATION NO. 18974
(CCc-033501-05)
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990

PARTIES :
FÁS

- AND -

SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION


DIVISION :
Chairman: Mr Duffy
Employer Member: Mr Murphy
Worker Member: Mr Nash

SUBJECT:
1. Contracts for staff on promotion.

BACKGROUND:
2. Under the Government policy for the decentralisation of Civil Service Departments and State Agencies, Birr, Co. Offaly was identified as the proposed site location for the new FÁS Head Office. In order to facilitate this move FÁS included a decentralisation clause in any new employment contracts and contracts for promotion within or to their Head Office. With regard to contracts for promotion, the Union contends that this action is contrary to the voluntary nature in which decentralisation should occur.

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 on the 13th September, 2006 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 2nd August, 2007

UNION'S ARGUMENTS:
3. 1 The decentralisation clause in FÁS contracts is a tool of compulsion to increase the numbers for Birr, Co. Offaly. This action would not be in line with the Government's position on the voluntary nature of decentralisation. The Labour Court has previously noted the voluntary nature of the decentralisation policy in LCR 18473. If a compulsory decentralisation is realised by way of promotion, the Union's members in Head Office will be discriminated against and treated unfairly when it comes to promotional opportunities.

2 The utilisation of such contracts on foot of promotion or transfer is not happening in other State Agencies. There are many social, family and personal costs associated with such proposed compulsory decentralisation on foot of promotion. The Union accepts the clause's inclusion in new employees contracts as they are aware of the proposed move.

3 FÁS acknowledges that promotions is not the answer to the lack of interest among its staff to relocate to Birr. The removal of promotional opportunities to staff in Head Office wishing to remain in Dublin only serves to de-motivate them.

COMPANY'S ARGUMENTS:
4. 1 Constructive negotiations have taken place in the broader Civil Service and agreement has been reached on how decentralisation is to be implemented. This includes agreement on the inclusion of a decentralisation clause in all new contracts and in a proportion of promotional contracts. The principle of employment contracts being conditional on acceptance of decentralisation is therefore established and accepted elsewhere.

2 The staffing of the new FÁS Head Office in Birr is a major challenge and it will be difficult to achieve. FÁS is a stand alone organisation. It does not have the same flexibility in terms of staff numbers or movement that applies in the Civil Service.

3 FÁS must have recourse to every possible mechanism to bring about the movement of staff to the new location. The decentralisation clause is critical in order for FÁS to staff a Head Office in Birr.

RECOMMENDATION:
This dispute came before the Court against the background of a Government decision to relocate the FÁS Head Office to Birr Co Offaly. It is acknowledged that the vast majority of staff currently located at the Head Office in Dublin are unwilling to move to Birr and that there is little likelihood of any significant change in that position.
 

FÁS wishes to introduce a requirement that staff members who obtain promotion or transfer to a Head Office post commit to relocating to Birr as and when required. This, it is submitted, is in line with the practice in the Civil Service and is required by Government policy. The Union is opposed to the proposal and contends that it is incompatible with the stated voluntary nature of the decentralisation process.
 

In its consideration of this case the Court has taken full account of the Government policy underlying the disputed requirement. However, in accordance with well established practice, the Court must formulate its recommendation based on its own independent view of the merits of the arguments advanced by both parties, as measured by accepted standards of reasonableness and good employment practice.
 

It is clear to the Court that the potential for career progression is an important feature of the general employment conditions of FÁS staff. While no employee can claim a right to promotion as a condition of employment, FÁS staff do have a right to compete for such promotional opportunities as arise within the organisation. They also have a concomitant right, under existing agreements, to be judged on suitability and merit alone in the competitive process.
 

FÁS say that the transfer of staff to Birr will, in accordance with stated Government policy, be on a voluntary basis. That must mean that staff have a right not to move. However, if they exercise that right they would be effectively denied access to promotions to which they could otherwise aspire. Thus, in practice, the overriding criterion for promotion would be a willingness on the part of the candidate to relinquish his or her rights not to transfer. Given the importance of career progression to those involved, such a state of affairs is, in the Court's view, incompatible with any reasonable notion of voluntarism.
 

There are other consideration of relevance to this case. Firstly, FÁS was influenced, to a significant degree, in applying the disputed contractual terms by the introduction of a similar provision in the civil service. In the Court's view decentralisation is likely to have a materially different impact on the careers of FÁS staff than in the case of Civil Servants. There is an obvious difference in scale between both employments. This, coupled with the possibility of inter-departmental competitions in the Civil Service, provides significantly greater opportunities for promotion in Government Departments than are available in FÁS. Secondly, FÁS acknowledges that even if its proposal to confine all promotions at Head Office to those willing to transfer were to be fully implemented it would have a minimal impact on the numbers likely to accept relocation to Birr. Yet, the organisation's persistence in seeking to apply this provision has generated considerable acrimony between the parties, which has impeded progress in addressing the dominant issues relating to the redeployment of staff who are unwilling to participate in the decentralisation programme.
For all of these reasons the Court recommends that FÁS should not proceed with the introduction of the disputed contractual term at this time.
 

The Court does, however, believe that the broader issue of decentralisation, as it affects State Bodies, must be advanced in a way which takes account of the peculiar circumstances of those Bodies and their staff. In particular the Court believes that the stated policy of effecting decentralisation on a voluntary basis could best be achieved if individuals who are unwilling to relocate are provided with realistic alternative career options, which take account of the proprietary rights and legitimate expectations which they have accrued in their current employments.
The Court believes that the appropriate authorities should address the issues arising in this case in the broader context of decentralisation of the non-commercial State Bodies overall. The focus of these discussions should be to identify appropriate career alternatives for those who exercise their right not to relocate from their current geographical base.

Signed on behalf of the Labour Court

Kevin Duffy
21st August, 2007 ______________________
DN Chairman


NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.

 

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