Industrial Relations in Irish Hospitals: A Review of Labour Court Cases

Industrial relations conflict inIrish hospitals: a review of

Labour Court casesJennifer Cowman and Mary A. Keating

School of Business, Trinity College Dublin, Dublin, Ireland

Abstract

Purpose – The purpose of this paper is to explore the nature of industrial relations (IR), and IRconflict in the Irish healthcare sector.

Design/methodology/approach – The paper is based on a thematic analysis of Labour Court casesconcerning hospitals over a ten-year period.

Findings – The findings of the paper indicate that the nature of IR conflict is changing in healthcare.The paper suggests that alternative manifestations of IR conflict evident in the Irish healthcare sectorinclude: absenteeism as a form of temporary exit; and resistance. The key groups in the sector arediscussed in the context of their contrasting disputes. The themes which characterise negotiations areidentified as precedent, procedure and partnership.

Research limitations/implications – The research was conducted in the healthcare sector, andthus its transferability is limited. Caution is also required as the research pertains to one nationalsetting, which despite sharing some structural similarities with other health and IR systems, is aunique context. The paper highlights the importance of recognising IR conflict in its various forms. Itis further suggested that managing the process of IR conflict may be significant in furthering changeagendas.

Originality/value – The value of the paper centres on the investigation of alternative manifestationsof IR conflict in the healthcare sector.

Keywords Human resource management, Employees behaviour, Health care, Ireland,Industrial relations, Industrial relations conflict

Paper type Research paper

IntroductionIt is widely acknowledged that human resource management (HRM) plays a centralrole in supporting service delivery (Harris et al., 2007, West et al., 2006) and changeimplementation (Conway and Monks, 2008) in healthcare organisations. Howeverindustrial relations (IR), defined as the rules and processes that govern the employmentrelationship and work relations, also have a critical role to play. The professionalworkforce (Bolton and Way, 2007), multiplicity of employee groups (Truss, 2003), highunion density (Dobbins, 2009a) and resistance to change (Conway and Monks, 2008;Rigoli and Dussault, 2003) that are characteristic of healthcare organisations makemanaging IR a core feature of HRM in healthcare. In line with this view, McDermottand Keating (2011) found that IR dominates the practice of HRM in Irish hospitals. TheIrish healthcare sector is popularly characterised as having adversarial relations and

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The authors would like to acknowledge the Irish Research Council for its financial support of thisresearch, and the helpful comments of two anonymous reviewers. The authors would also like toacknowledge the use of graphs from the Central Statistics Office.

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Journal of Health Organization andManagementVol. 27 No. 3, 2013pp. 368-389q Emerald Group Publishing Limited1477-7266DOI 10.1108/JHOM-11-2012-0223

high levels of IR conflict (Dobbins, 2006, 2009a; Wall, 2009). Further, it has been notedin the Irish setting that “industrial relations in the [Irish] Health Service are undercontinuous and sustained pressure” (Labour Relations Commission, 2001).Consequently the objective of this paper is to explore the nature of IR in Irishhealthcare, and the range of ways in which IR conflict manifests. To achieve this, thepaper begins by positioning IR as a key feature of HRM in healthcare, beforeconsidering the range of ways in which IR conflict can manifest. The methodologyutilised to explore IR conflict in the Irish healthcare sector is then detailed, before corefindings are presented and discussed.

HRM in healthcare: The challenge of IRThe purpose of this section is to present the challenges that healthcare poses to HRM,and to position IR as a key feature of HRM in healthcare organisations. HRM plays acentral role in supporting service delivery in healthcare organisations (Truss, 2003).This arises due to the labour intensive nature of the sector, noted by Buchan (2000) inthe UK (Buchan, 2000), and evidenced in the fact that 70 per cent of costs in Irishhospitals are labour-related (McDermott and Keating, 2010). Thus, in healthcare,managing people and by extension HRM, is critical.

The [Irish] Health Service is one of the largest employers in the State with approximately80,000 people involved in the provision of health care. It operates in an extremely complexand demanding environment where issues concerning human resource management [. . .] andindustrial relations can become strained from time to time (Labour Relations Commission,2001, p. 1).

In this paper, HRM is defined as the “management of people at work both asindividuals and collectives, as well as the management of work” (McDermott andKeating, 2011, p. 678). The healthcare context presents key challenges to HRMprofessionals, discussed below.

Described as a professional bureaucracy (Mintzberg, 1980), healthcare ischaracterised by multiple professional employee groups (Bolton and Way, 2007)with an entrenched “tribal” culture (Davies et al., 2000, p. 113; Fitzgerald et al., 2002).Key challenges arise from these factors. First, in a professional bureaucracy, power isdevolved to the operating core, where the professionals themselves control their work(Mintzberg, 1980). Owing to knowledge asymmetry between healthcare professionalsand management, and the consequent autonomy healthcare professionals wield in theworkplace, Mintzberg (1980, p. 334) notes that “managers in the middle line, in order tohave power in the Professional Bureaucracy, must be professionals themselves”. Thedivide between healthcare professionals and management is further exacerbated bythe largely external standardisation of professional skills in multiple functionalspecialities. Together these factors make managing professionals “akin to herdingcats” (Mintzberg, 1997, p. 13) and pose specific challenges to HR managers. Thiscontention is supported by Buchan (2004, p. 4) in the UK, who noted that “[t]he avowedfirst loyalty of those with sector-specific skills and qualifications (physicians, nurses,etc) tends to be to their profession [. . .] rather than to their employer”. These tensions inthe manager-professional relationship are said to have contributed to a legacy ofconfrontation between management and medical professionals in the UK. This legacy,in turn, hinders the ability of HR to contribute (Hyde et al., 2006).

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A second challenge to HRM relates to the multiplicity of employee groups. It isargued that the existence of departmental and speciality divisions leads to “in-groupfavouritism” and “out-group discrimination” in hospitals (Michie and West, 2004). Themultiple and often competing interests of distinct employee groups can contribute to“tribal” behaviour (Davies et al., 2000, p. 113), creating a “classic pluralistic domaininvolving divergent objectives” (Denis et al., 2001, p. 809). In the same vein, Mintzberg(1997) notes that the co-existence of different employee groups in a hospital context,and their contrasting professional perspectives, can create fragmentation. Further,because of the differing uniqueness and value of these employee groups to healthcareorganisations (McDermott and Keating, 2011), different contracts of employment, andmodes of employee engagement, can co-exist within the same organisation. Thus,while the existence of multiple groups has far reaching implications for organisationalculture (Davies et al., 2000), it also has implications for HRM by creating multipleco-existing employment relationships among employees working in the sameorganisation.

Another challenge to the practice of HRM in healthcare organisations is the highlyunionised nature of the sector. Healthcare consists not only of a multiplicity ofemployee groups but a multiplicity of trade unions and professional associations(Truss, 2003). This is evidenced in the Irish system, where coverage of collectivebargaining is estimated at 100 per cent in public healthcare (Farrelly, 2009). Uniondensity for the total healthcare sector is 86 per cent (Dobbins, 2009a) compared to anational average of 37.4 per cent (Dobbins, 2009b). Similar trends are noted in the UKby Bach (2004, p. 5) who stated that the influence of multiple unions and professionalgroups have remained a “long-standing feature of the NHS HR context”. In Ireland, theLRC stated that “[i]t appears [. . .] that industrial relations in the [Irish] Health Serviceare under continuous and sustained pressure” (Labour Relations Commission, 2001,p. 1). More recently, McDermott and Keating (2011) concluded that industrial relationswere a dominant activity in the practice of HRM within Irish hospitals. Thus,managing multiple and collectivised employee cohorts is a significant challenge toHRM in healthcare.

The healthcare sector is also characterised by persistent reform efforts. Changeimplementation in healthcare tends to be researched from context (Pettigrew, 1992),structure (Denis et al., 2001), and agency (Buchanan and Boddy, 1992; Buchanan et al.,2007) perspectives. The IR perspective, given the highly pluralist and unionised natureof hospitals, is a notable absence. However, some attention has been afforded to thesupport HRM provides to strategic change initiatives by involving employees (Harriset al., 2007; Truss, 2003) and their representatives (Martineau and Buchan, 2000). Suchemployee involvement is often used to reduce resistance. This reflects the fact thatemployees are “strategic actors who can act individually or collectively to modify thegovernments’ projects, such as trying to impede budget cuts” (Rigoli and Dussault,2003, p. 1478). This is supported with evidence from Ireland, where it was found thatemployee resistance to change was being addressed via the IR system. Specifically,Conway and Monks (2008, p. 81) note that “any questioning of change has resulted inlabour court/labour commission proceedings”. Beyond resistance to change, Buchan(2000) identifies that unionisation can impose restrictions on the pace of change, due tothe protection of employment conditions. Similarly, Martineau and Buchan (2000, p. 1)suggest that a unionised context poses “serious opposition” to the implementation of

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change. Therefore, while some authors focus on the relationship between HR andhealth sector reform (Conway and Monks, 2008; Bolton and Way, 2007), we can alsoidentify a connection between IR and health sector reform. HR and IR each play criticalinfluencing roles in reform and change processes. It appears from the literature that HRis viewed as an enabler of change, whilst IR is considered a constraining factor.However from a pluralist perspective it may be useful to consider IR as an interveningvariable in the relationship between HRM and change, where IR can have enabling andconstraining effects.

In sum, healthcare organisations are characterised by tensions between managersand powerful medical professionals (Buchan, 2004; Truss, 2003), multiple employeerelationships (McDermott and Keating, 2011), highly unionised employee groups(Buchan, 2004), and resistance to change (Martineau and Buchan, 2000; Conway andMonks, 2008). Therefore, IR cannot be overlooked as a central activity in the practice ofHRM in healthcare organisations. This is discussed in further detail below.

Industrial relations and conflictIR is defined here as the rules and processes that govern the employment relationshipand work relations. Despite the acknowledgement that conflict is “the basic conceptthat should form the basis of the study of industrial relations”, there is no accepteddefinition of IR conflict. While authors diverge on its many characteristics (Lewickiet al., 1992), there is broad agreement that IR conflict is rooted in the employmentrelationship between employee[s] (or a representative thereof) and the employer (Rocheand Teague, 2010), and is influenced by power asymmetry (Morrison and Robinson,1997) and the interdependent nature of the employment relationship (Brett, 1984). Inthis paper, IR conflict is defined as the action, or collective actions, that arise in or relateto the work setting, when one party in the interdependent and power-asymmetricemployment relationship perceives that another party in the relationship is frustrating,or about to frustrate, an important concern or goal relating to work, working conditionsand/or the working environment.

Many authors have attempted to provide models that move beyond definitions of IRconflict and explain broader aspects of the phenomenon (Schmidt and Kochan, 1972).The input-output model (see Figure 1) consists of inputs, conversion and outputs in theform of regulation and rules regarding future exchanges. Created by Craig (1983; citedin Poole, 1984), in this model inputs refer to the goals, values and power of the parties,while outputs arising from a complex conversion process are the products of

Figure 1.The input-output model of

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interaction. In this model, outputs can refer to either the resolution of IR conflict andrules created for future disputes, or to effects on the future goals, values and power ofthe participants via a feedback loop. Sexton (1996, p. 272), adopting a similar processbased approach, concludes that IR conflict is “unique in that it exists, expresses itself,takes place and is resolved in a context of interdependence between the parties”.

IR conflict in a changed contextIn Ireland a number of trends have emerged that have altered the IR landscape and themechanics of the IR system. These include the juridification of the employmentrelationship (Browne, 1994), the individualisation of IR (Roche, 2001), the introductionof state-provided dispute resolution machinery (Roche, 2001), and the decline ofvoluntarism (King, 2007). Interestingly these trends are replicated internationally.Specifically, the European context has also exhibited a shift toward individualisation(Scheuer, 2006); the juridification of the employment relationship has been documentedin the UK (Dickens and Hall, 2006), and Estreicher (2009) has commented on the demiseof voluntarism in the USA, Germany and the UK.

Trends regarding the decline of strike activity have also been observedinternationally: in Europe and the USA (Bordogna, 2010), the UK (Scheuer, 2006),and in Ireland (Roche and Teague, 2010). Scheuer (2006, p. 26) noted that strike actionhas “been declining markedly in most European countries since the 1970s”, with thedecline in countries like Ireland and the UK “certainly much more dramatic”. Thedecline of strike activity in Ireland is illustrated in Figure 2. This shows a broad declinein working days lost[1] since 1985 (Central Statistics Office, StatBank[2]). The sharpincrease in days lost evident in 2009 is attributable to the public-sector wide strike(Farrelly, 2011)[3].

Several authors have put forward explanations for the international decline in strikeactivity ranging from declining union density and coverage to changes in theemployment relationship and broader changes in society (Scheuer, 2006). Importantly,in the UK Drinkwater and Ingram (2005, p. 393) warn that “the reduction of strikeactivity may [. . .] prove an erroneous measure of harmony at the [. . .] workplace”.Similarly, in Ireland Roche and Teague (2010) suggest that a decline in strike actionmay not indicate the absence of IR conflict. Reflecting this stance, Kornhauser et al.(1982, p. 13) note that often, “only ‘lip service’ is paid to the less spectacularmanifestations of conflict”.

Thus, preoccupation with this singular measure (i.e. the strike) fails to capture thefull range of potential manifestations of IR conflict which “may result in an incompleteunderstanding of the dynamics of conflict” (Hebdon and Stern, 1998, p. 204) andunderestimation of economic and other impacts (Drinkwater and Ingram, 2005, p. 374).The impact of IR conflict can be evaluated in terms of its effects on productivity,stability and adaptability (Pondy, 1967). These important determinants of humancapital performance can be affected by strike action, but alternative manifestationsmay also have significant effects (Abbott, 2007). Clarke et al. (2008) concur, arguingthat the working days lost from absenteeism greatly exceed that lost from strikes evenduring peak activity. Therefore strike activity may not be the most accurate indicatorof IR conflict in today’s environment. As a result, our ensuing subsection focuses onalternative manifestations of IR conflict.

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Alternative manifestations of IR conflictAlthough extant research focuses on the strike as “the traditional yardstick ofworkplace relations” (Drinkwater and Ingram, 2005, p. 373; Devereux and Hart, 2010)there is broad recognition that IR conflict manifests in several ways (Turkington, 1975;Bordogna, 2010). These other forms of IR conflict warrant attention in the healthcarecontext. A useful lens to review alternative forms of IR conflict is provided by Freemanand Medoff’s (1984) adaptation of Hirschman’s (1970) exit-voice model, which will besupplemented with a discussion of resistance.

Exit: the act of going out or awayFreeman and Medoff defined (1984, p. 7) exit as “synonymous with quitting”. Withinthis framework employees respond to discontent in the workplace by choosingbetween exit and voice (Addison and Belfield, 2003), where “[i]n the job market, voicemeans discussing with an employer conditions that ought to be changed, rather thanquitting the job” (Freeman and Medoff, 1984, p. 8, emphasis added). Freeman andMedoff (1984) argue that a union can lower turnover via the two faces of unionism.First the “monopoly face” of unions can establish bargaining power and secure higherwages, and second the “voice” or “institutional response” face of unions can contributeto the development of grievance and arbitration systems, and seniority based HRpolicies (Freeman and Medoff, 1984).

Quitting or turnover may be restricted due to a lack of available employmentalternatives, and/or high psychological costs associated with retraining (Hammer andAvgar, 2007). In such circumstances a dissatisfied employee may seek other forms ofexit. Therefore while classic understanding of exit is based on quit or turnoverbehaviour, this paper considers absenteeism (Knowles, 1952; cited in Sapsford and

Figure 2.Strike activity by year in

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Turnbull, 1994) and tardiness (Bean, 1975) as forms of “temporary exit”. There are twotypes of absenteeism in the workplace:

. type 1 (T1) is involuntary due to genuine illness; and

. type 2 (T2) is voluntary (De Boer et al., 2002).

Bean (1975, p. 98) concurs, stating that whilst sickness absence is the primarycontributor to absenteeism, absenteeism “can also be regarded as withdrawal from thework situation and a form of negative reaction to the employer”. Difficulty arises inresearch and management in distinguishing between voluntary and involuntaryabsence. We can, however, use frequency of absence (Luchak and Gellatly, 1995) orrepeated uncertified absences as approximations of voluntary absence.

VoiceThe voice concept originally sought to establish the “fight or flight” response ofdissatisfied customers (Lewin and Mitchell, 1992). Voice is defined as “opportunitiesfor employees to convey their ideas and opinions” to their employer (Bagchi, 2011,p. 881) or “employee’s ability to express their views and to participate indecision-making” (Bishop and Levine, 1999, p. 213). It is said to include a widevariety of forms, ranging from suggestions regarding operations to mechanisms forcomplaint.

This contemporary view of voice or “soft voice” (Bagchi, 2011, p. 869), whichincludes any communication of employee ideas or opinions to employers, departs fromHirschman’s (1970), and later Freeman and Medoff’s (1984) focus on voicing discontent.This is reflected in the title of Hirschman’s work Exit, Voice and Loyalty: Responses toDecline in Firms, Organisations and States (emphasis added). Similarly, Freeman andMedoff (1984, p. 8) focus on discontent: “the use of direct communication to bring actualand desired conditions closer together. It means talking about problems”. This paper,focusing on IR conflict, adopts the traditional stance and views voice in terms ofdiscontent.

Stemming from Freeman and Medoff’s (1984) assessment that “[c]ollective ratherthan individual bargaining with an employer is necessary for effective voice at theworkplace”, union membership is often conceptualised as synonymous with voice.This perspective is evident where research is built on the assumption that the absenceof a union creates the absence of voice – resulting in a vacuum. Benson (2000, p. 453)notes: “[f]or some commentators independent unions are the only source of genuinevoice”. We can critique this approach based on emerging literature on non-uniongrievance systems (Lewin and Mitchell, 1992), and the existence of individual voice(Luchak and Gellatly, 1995). Consistent with this Luchak (2003) distinguishes betweendirect voice which entails employee efforts to mobilize change through communicationwith a supervisor, manager or employer, and representative voice which refers toindirect communication via a representative (e.g. union steward) or a process such as agrievance procedure.

Voice is often operationalised as grievance filing (Boroff and Lewin, 1997). Througha grievance procedure, internal or external, an employee has the opportunity tocommunicate and express their work related discontent. While this can pertain toissues outside the traditional parameters of IR conflict, it often concerns matters withinthe confines of the employment relationship. Cappelli and Chauvin (1991, p. 3) note

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“[t]he rate at which grievances are filed by employees is an important measure of thestate of employee relations because it is indicative of the underlying level of conflictbetween workers and management”. In this context grievance filing can beconceptualised as a manifestation of IR conflict.

Resistance: the refusal to accept or comply with somethingThough not included in Freeman and Medoff’s (1984) framework, due to our focus onhealthcare, resistance is identified as relevant. This is based on evidence in Ireland(Conway and Monks, 2008), the UK (Buchan, 2000) and the USA (Rigoli and Dussault,2003), which suggests that IR poses a significant challenge to healthcare reform.Specifically, McDermott and Keating (2010, p. 63) that “Ireland has experiencedsustained problems in attaining service improvement in health care”. Further, Freemanand Medoff (1984, p. 21) acknowledge that unionised organisations operate “by thebook”, resulting in less flexibility. Therefore the authors include resistance as a form ofIR conflict.

Some authors consider absenteeism, sabotage and voice as forms of resistance(Roscigno and Hodson, 2004). However, here we adopt a narrower conceptualisation.This paper views resistance as the “refusal to accept or comply”, where the focus ofresistance may include a policy, management strategy, directions/orders of work, andresistance to change as a broader focus. However, Dent and Goldberg (1999) argue thatpeople do not resist change; rather, people resist loss. Employees may resist loss of pay,status, autonomy, or loss of the familiar and its associated security. While resistancemay be motivated by other aspects of change, there is broadly resistance to a changedoutcome. Other language that may be used to discuss resistance in this context mayinclude the withdrawal of cooperation (Harrison et al., 2001).

This section presented a review of literature pertaining to IR conflict with a view toestablishing a justification for renewed investigation into the phenomenon. It has beenshown that, whilst recognised as a multi-faceted construct, IR conflict is synonymouswith the strike. However, due to changes in the IR landscape and declining strikeactivity the authors assert that the strike may not be the most accurate indicator of IRconflict. Thus the following section will detail an investigation of alternativemanifestations of IR conflict.

MethodologyThe methodological approach consists of a thematic analysis of Labour Court casesconcerning hospitals over a ten year period. The objective of this investigation is toexplore the nature of IR, and IR conflict in the Irish healthcare sector.

Research contextIR conflict manifests in a multiplicity of ways. Thus an investigation of IR conflictusing an alternative to the strike metric provides value. The changes in the IRlandscape provide further impetus for the investigation of alternative manifestations ofIR conflict, and alternative arenas in which IR conflict can arise. These changes pointto the value of using an IR institution as a milieu to explore IR conflict. This is based onthe increasing importance of legislation and procedure in the resolution of employmentdisputes (King, 2007), and the rise of state-provided dispute resolution (Roche, 2001). Ithas also been noted (Labour Relations Commission, 2001, p. 1) that the Irish health


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service has a “disproportionately high level of usage” of the LRC and the Labour Court,which is “indicative of the extent of industrial relations activity in the Health Servicegenerally”.

There are a variety of IR institutions in the Irish IR system. According to King(2007, p. 122) the Labour Court “is the most important industrial relations institution inIreland” based on the “status of the Labour Court as a court of last resort” (Murphy,1994, quoting Bonner[4]; cited by King, 2007, p. 122) and its involvement in the mostsignificant IR events in the State over the last 60 years. The conceptualisation of theLabour Court as the “Court of Last Resort” stems from:

. its function as a Court of appeal via both the Rights Commissioner and theEquality Tribunal;

. the Court’s role in investigating disputes that pose a threat to national interest;and

. the notion that the Labour Court is the last point in the system before a strikeaction.

It is understood that parties to a dispute have an obligation to “exhaust the process”before strike action, where the Labour Court is viewed as the last step in the process.This is reflected by the Labour Relations Commission (2001, pp. 3, 24) which noted that“Labour Court recommendations must be the final step in the industrial relationsprocedures”, and that “[t]he Labour Court must be accepted as the Court of last resortand the end of the process”. The report also stipulates that prior to the end of theprocess, “no strikes, lock-outs or other action designed to bring pressure to bear oneither party should take place” (p. 36). Thus, in selecting an IR institution in which toinvestigate alternative manifestations of IR conflict, the Labour Court is an appropriatesetting.

Research designAll cases relating to the Irish healthcare sector occurring between 2000 and 2010 werereviewed. This created a population of 992 cases. The initial cohort of cases wascollected from the Labour Court database using the search terms “hospital” and “HSE”(i.e. Health Service Executive). A sample of 385 cases was retained based on thefollowing selection criteria, which included cases falling within the unit of a hospital, ordirectly concerning a hospital or a number of hospitals where the employer was statedas the, Health Board, the HSE or the Health Service Executive Employers Agency(HSE-EA)[5].

Cases were examined and categorised under several headings. The second stageinvolved thematic analysis facilitated by NVivo, a qualitative data analysis softwarepackage.

Data analysisThematic analysis which involves identifying, analysing and reporting patterns orthemes of data was used to interpret the research data (Braun and Clarke, 2006). Theresearch incorporated both the data-driven inductive approach of Boyatzis (1998), andthe deductive theory-driven approach involving the use of a priori constructs asoutlined by Miles and Hubberman (1994). The value of this approach was highlightedby Fereday and Muir-Cochrane (2006, p. 83) who noted that integrating these methods

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allows the study to draw on extant research and for themes to emerge directly from thedata. In practice this required three iterative cycles of analysis. Firstly an inductivereview of the data to allow for emergent codes was conducted. The second stageinvolved exploring deductive codes and the use of a priori constructs derived fromexisting literature. The final cycle involved reviewing the codes with their associateddata, and clustering codes into themes.

Findings: exploring the nature of IR and IR conflict in healthcareData analysis revealed findings in the following areas:

. the changing nature of IR conflict;

. alternative manifestations of IR conflict;

. healthcare as a pluralist context; and

. themes of negotiations.

The changing nature of IR conflict: the demise of the strike?A total of six out of 385 cases explicitly referenced the issue of industrial action. In onecase concerning redeployment of ambulance staff (LCR16988), there was a threat ofindustrial action that led to national engagement via the National ImplementationBody (NIB), where remaining issues were referred to the Labour Court. The Courtcommented:

Following a threat of industrial action by one of the Unions, the dispute was the subject ofdiscussions between Senior Government Officials and the Social Partners under the auspicesof the National Implementation Body of the PPF [Program for Prosperity and Fairness].

Despite the focus of extant research on strike activity, the Labour Court data containedvery few references to strikes. Only two out of 385 cases contained direct references tostrike action. In one case concerning St Ita’s Hospital (LCR16686), there was a “one daystrike action” over issues pertaining to hours of attendance, uniform provision and theconditions of the working environment, while in a case concerning the SouthernEastern Health Board (AD0290) there was a reference to a national nursing strike in1999. Interestingly, however, the Court itself described issues beyond the remit oftraditional strike action or industrial conflict as “conflict”. This emerged in a caseconcerning HSE Dublin North East (LCR19645), which related to alleged workplacebullying between a manager and a subordinate. Whilst bullying is typically discussedin terms of HR/interpersonal conflict, an employer’s failure to investigate bullying andsubsequent sick leave brings the issue into the IR domain. The Court noted that “abetter management response would not have avoided the conflict giving rise to thisclaim”.

The limited references to strike action were accompanied by an increase in LabourCourt cases for hospitals, with cases increasing from 21 in 2001 to 47 in 2009. When weexclude the outlier of the public-sector wide strike in 2009 (Farrelly, 2009), which maydistort national figures due to the size of employment in the public sector (Eurofound,2009), we can observe a decline in national strike activity for the same period. Withinthe Irish healthcare sector strike activity remained in line with comparator industriessuch as the Irish education sector, as is illustrated in Figure 3. As can be observed inFigure 4, there is a small difference in working days lost between the healthcare and


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Figure 3.Working days lost in theIrish healthcare andeducation sectors,2000-2008

Figure 4.Working days lost in theIrish healthcare andeducation sectors, 2009

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education sectors in 2009. However this is attributable to the public sector strike andthe differences in numbers employed (Boyle, 2011).

Despite this evidence, the sector continues to be described as “highly adversarial,traditional and defensive, with frequent disputes arising over any changes” (Dobbins,2009b, p. 11). Further, when we review the top three sectors most affected by strikeactivity per year over the 2000-2009 period, Irish healthcare was cited less than themanufacturing and transport/communication sectors (Carley, 2008).

Alternative manifestations of IR conflictBased on the analysis of the Labour Court data, the most heavily referenced issueswere pay and change. However, due to the scope of this study this paper will focus onchange and resistance and absenteeism as alternative manifestations of IR conflict.While traditionally described in HR terms, these issues have presented in an IR forum.The Court made reference to non-traditional IR issues presenting in the Labour Courtin a case concerning the conditions of the working environment, specifically security,clerical cover and the use of a prefab building in an Accident and Emergencydepartment:

The Court has some doubts as to whether the matters raised in this claim could be properlyclassified as industrial relations issues. Nonetheless, they are the subject of dispute betweenthe members of the INO [Irish Nurses Organisation] and their employer and it is in theinterest of all parties that they be fairly addressed (LCR18681).

The theme of change was evident in many cases, with disputes between employer andemployee relating to the classification of change, and whether such was within theparameters of “normal ongoing change” as established in national SocialPartnership[6] agreements. In a case relating to the HSE, the union party stated that“[a] significant extension to the working day involving a late finish could not becharacterised as normal ongoing change”.

The issue of resistance to change was also dominant in many of the cases. Anumber of cases exhibited resistance to change in an indirect way, and in line withDent and Goldberg (1999) are better described by resistance to loss. Resistance to “lossof earnings” was heavily cited across the cases, while other losses such as the loss of“afternoon tea break” (LCR19751), “one days marriage leave” (AD0115), status(AD0734), a subsidised canteen (LCR16547), and free meals (LCR19506) were alsoreferenced.

Despite the prominence of resistance to loss, 34 out of 385 cases related specificallyto resistance to change. This issue is well illustrated in a case concerning the St FrancisPrivate Hospital (AD0285), where management sought to change reporting structures.The union involved stated that “[t]he current reporting structures for laboratory staffhas served our members, the hospital and its clients for over twenty-five years. Thereis no need to change them now”, and that “[c]hange for change sake is not always agood policy. No logical explanation has been given as to why this change should takeplace”. Thus rather than change being the norm it requires justification. Mr SeanMcGrath, former Director of HRM in the HSE, stated that “[t]oo much time is spentexplaining why the business needs to change [. . .] [w]e’re going to suffer the corporateequivalent of a massive coronary and we’ve no time for anaesthetic“[7]. Therefore,delays posed by IR in healthcare (Buchan, 2000) may be related to resistance to change,and pressure to justify change. Absenteeism, traditionally conceptualised as a HR


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issue, also presented as an IR issue in the Labour Court, and indeed as a manifestationof IR conflict. Owing to the ambiguity surrounding absences, it was difficult todistinguish between medically justified and unjustified absenteeism as discussed byDe Boer et al. (2002). That said, the issue of uncertified absence, which is taken as aproxy for medically unjustified absences, arose in a number of cases. This was evidentin the Mid Western Health Board (LCR17980) case, where management pursueddisciplinary action regarding absenteeism. While the union acknowledged that when“a pattern of sick leave develops it must be dealt with”, it was the union’s position thata disciplinary approach is not suitable and instead warranted a “sensitive caringapproach”. In response the employer stated that the employee was requested “toprovide medical certification for any uncertified absences” after which “[h]e again had2 episodes of uncertified sick leave in 2002 [where] no medical certificates werereceived by the Board”.

The above illustrates that absenteeism is an issue of management concern in thehealth domain. Similarly in the Southern Area Health Board (LCR17289) case, whichrelated to a dispute over job rotation, management stated that “[n]on rotation can leadto increased levels of absenteeism”. The issue was also cited in a case concerning StVincent’s Hospital (LCR18884), where management “made a decision to deal with whatit believed were unacceptably high levels of absenteeism” by issuing letters to 54 staff.This resulted in a claim for compensation from four employees.

In addition to medically uncertified absences, the issue of stress-related absencesarising from workplace problems was evident in many of the Labour Court cases.There were three forms of stress-related absences. The first concerned the employeeresponse to disciplinary action. While the link between discipline and absenteeism wasnot explicitly made in the cases, a significant portion of cases concerning disciplinereferenced employee absenteeism, where absenteeism was not the issue of disciplinaryaction:

The disciplinary process concluded and the subsequent appeal found that the assistantdirectors should return to work on a given date, which did not happen. The two assistantdirectors who were suspended and an additional three assistant directors are currently onsick leave (LCR19571).

The remaining two types of stress-induced absenteeism related to bullying with amanagement “failure to investigate” (AD0445), and conditions of work where the “highlevels of stress workers are under” were reflected by “high levels of sick leave whichare a huge burden on hospital resources and staff” (LCR18684).

Absenteeism has been identified as a problem in Irish healthcare, with a rate of 4.8per cent in 2012, 37 per cent over the HSE target of 3.5 per cent (Mitchell, 2013). Further,in 2011 15 per cent of all absences were uncertified (Health Service Executive, 2011).Thus, absenteeism is both a significant problem in Irish healthcare, and based onanalysis of this data, a manifestation of IR conflict.

Healthcare as a pluralist contextThe parties in the employment relationship typically consist of three groups: employer,union and employee. The healthcare sector differs however comprising of amultiplicity of employee groups, and a multiplicity of unions (Truss, 2003). The casedata was segmented according to employee group allowing intergroup comparison. Itwas found that there are a number of groups that persistently present in the Labour

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Court most notably nurse, non-consultant hospital doctors (NCHD), and laboratorystaff, closely followed by porters. However, this may reflect the relative size of groups.Interestingly when we compare these groups to rates of absenteeism in the sector wefind that the NCHD group exhibited the lowest rate of absenteeism of any employeegroup averaging between 0 and 1 per cent while nurses and general support staffexhibited the highest levels reaching rates of 16.08 per cent and 11.16 per cent,respectively (Health Service Executive, 2012).

The issues of conflict differed according to professional group with NCHD’sfocusing on issues of working time and the implementation of the EU Working TimeDirective, along with claims for contracts of indefinite duration. In contrast porterspursued claims relating to grading and parity with other groups.

The issue of multiple unions arose in a case involving the Eastern Regional HealthBoard (LCR16675) that explicitly referenced inter-union disputes. This case concernedthe appointment of nurse management positions, where an agreement with one nursingunion led to a dispute with two other health sector unions. The Court noted that“[m]anagement is not prepared to place itself in the midst of an inter-union dispute”.Consistent with Kearney et al. (2010) in the USA, this signifies the complexity ofhealthcare management, where HRM professionals face not only a multiplicity ofcollectivised professions and the dynamics between them, but also the dynamics ofinter union competition.

The themes of negotiationsResulting from an analysis of the data three key themes emerged which characterisedthe negotiation of IR conflict. These were identified as precedent, procedure andpartnership.

The theme of precedent, a classic feature of negotiation in IR, was referencedthroughout the cases reviewed. There were three types of precedent issues:

(1) established precedent or “custom and practice”;

(2) precedent and parity; and

(3) precedent setting or “knock on effects”.

The first, established precedent, emerged as a theme of negotiation where the employerhad allegedly breeched “custom and practice”. Often used as an argument to resistchange, unions attempted to preserve the status quo, by identifying such as “customand practice” and therefore an implied term and condition of employment.

The issue of precedent and parity was used as a means of securing improved termswhere union representatives identified an example of desired practice applicable toanother employee group, another part of the hospital or another hospital in the sector.Notably claims relating to parity extended beyond the boundary of the employersignalling the scope of precedent in the sector.

While the two types of precedent identified above centred on union argument, thethird type related to the employer argument that concession of a claim would setprecedent and lead to further claims or “knock on effects”. In a case concerning StColumcille’s Hospital (LCR16830) the employer stated that “any concession of the claimwill lead to knock-on effects in other areas of the hospital”, while a case concerning StVincent’s Hospital (LCR18327) referred to broader precedent setting “for health


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services providers in the Dublin area and throughout the country”. This highlightshow connected the healthcare context is, and further signals the scope of precedent.

The issue of procedure was prominent in many cases. While the substance of thecase often related to what might be termed “non-IR issues” such as bullying andinterpersonal conflicts, IR conflict emerges when the procedure followed by theemployer in addressing these issues was in some way perceived to be inadequate. Thistheme of procedure is evident in cases concerning discipline and in the management ofemployee grievances, where procedural inadequacy relates to an inconsistencybetween the course of action pursued by management and management’s own policy.This was evident in a case relating to the HSE (LCR0655), where the union claimed that“management at the hospital did not follow their own grievance and disciplinaryprocedures and the worker was sent home unfairly as a result”. This is reminiscent ofFreeman and Medoff’s (1984, p. 21) description of unionised organisations as operating“by the book”, noting that a key aspect of a union’s “voice” face is the development ofgrievance and arbitration systems. Thus we can argue that maintaining grievancesystems is also a key union role.

It was found in the cases reviewed that the tripartite structure that was SocialPartnership acted as a context and rule maker in negotiations between employer andemployee. In many cases a claim was challenged by the employer stating that it was inbreach of the national agreement, while the issue of whether a change initiative waswithin or beyond the parameters of normal ongoing change was also determined bypartnership. In a case concerning St Vincent’s Hospital (LCR18327), the employerrejected a claim for compensation, stating that it was “ccost increasing [. . .] and is thusprecluded by Sustaining Progress”. The employer continued to state that“[c]ooperation and flexibility is an integral part of these deals”.

While Social Partnership has ceased to exist it is thought, on the basis of the above,that its processes are embedded in the Irish IR context, and that, in the context of thepublic sector, the Public Sector Agreement continues to act as a rule maker in the IRsphere.

DiscussionThe change in the nature of IR conflict in the Irish healthcare sector is illustrated by theinconsistency between the perception of Irish healthcare as conflict-prone (Dobbins,2009a; Wall, 2009) and strike data for the sector. While the sector continues to berecognised as an exemplar of adversarial relations this is not reflected in strike data,which show that sectors such as education display comparable levels of strike activity,while manufacturing and transport/communication are more affected by strikes. It hasbeen noted, however, that healthcare exhibits a disproportionate use of third-partyinstitutions, including the Labour Court (Labour Relations Commission, 2001). Thissupports evidence in the UK suggesting that strike activity may not be the mostaccurate indicator of IR conflict (Drinkwater and Ingram, 2005).

Despite the focus of extant research on strike activity (Drinkwater and Ingram,2005; Devereux and Hart, 2010) the findings of this study indicate that the nature of IRconflict in Irish healthcare is undergoing a transformation. The Labour Court, as the“Court of Last Resort” (King, 2007) hears disputes at the last point in the disputeprocess before industrial action (Labour Relations Commission, 2001). However, basedon our analysis of 385 cases there were limited references to strike. This seems

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inconsistent with the use of strike, and its threat, to apply pressure (Clegg, 1976).Prominent themes that arose in the cases analysed related to issues not normallyconceptualised as IR conflict. Issues such as absenteeism and resistance to change,typically considered within the HRM domain, were observed as falling within theCourt’s remit defined as “the provision of fast, fair, informal and inexpensivearrangements for the adjudication and resolution of industrial disputes” (Labour Court,2011). This finding is consistent with Goddard (2011, p. 283) who posited that IRconflict may have been redirected to alternative “less organised and less overtmanifestations”, or repressed and therefore exhibiting itself in “various forms ofdysfunctional behaviour not typically considered to reflect conflict”.

The findings of the paper indicate that absenteeism is a form of IR conflict, and ameans to “exit” the workplace. This is consistent with De Boer et al. (2002), who notedthat there are two ways that discontent in the workplace may contribute toabsenteeism. Firstly, the “withdrawal” explanation of absenteeism indicates that anemployee uses absenteeism to avoid the workplace and “aversive working conditions”(De Boer et al., 2002, p. 181). The second way that discontent can lead to absenteeism isthrough stress. The employee, stressed with the working environment or theconditions of work, may begin to exhibit physical symptoms/health problems, andabsenteeism can result. We can argue that discontent, and subsequent stress, can arisefrom IR conflict. The issue of stress and its relationship with absenteeism was alsoheavily referenced, indicating that discontent in the employment relationship may leadto both voluntary and involuntary absences. This is supported by Tetrick and Fried(1993), who note the linkages between IR and stress due to the inherent tensionbetween management and labour.

The multiplicity of professional groups and the themes of IR conflict negotiationsprovide further evidence on the complexity of the healthcare context, and specificallythe IR challenge posed by the sector. It emerged throughout the cases that each grouphad differing issues and priorities. This is consistent with Mintzberg (1997), who notedthe tendency of professional groups and their objectives to diverge. However, thepluralist context is further complicated when we consider the prevalence of precedentin the cases. McDermott and Keating (2011) found evidence suggesting that hospitalHR departments, dominated by IR matters, focused efforts on providing services togroups with low strategic value and low uniqueness. The difficulty associated withcorrectly allocating employees to the quadrants of the uniqueness-value framework,particularly within the healthcare context, is noted (McDermott and Keating, 2011).Further challenges in this regard may be the employee’s assessment of their value andwhether this conforms to that of HRM, and the employee’s assessment of their valuerelative to other employee groups, where issues of equity and the perception of fairnessmay arise. The issues of precedent and parity and knock on effects may be significanthere, as the ability of HRM to differentiate practice according to employee group maybe limited by a fear of precedent setting, and potential for claims relating to “like work”This was dominant in cases relating to the porter group. Mintzberg (1997, p. 7)identified the dangers of precedent, noting that delivering on a deal with one group“can be divisive in the system”.

The theme of IR conflict and change was evidenced throughout the cases. Thefindings point to change as an instigator of IR conflict. While Fox (1973) asserted thatIR conflict arises from diverging interests, Barbash (1980) contended that conflict is a


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product of organisational tensions due economic insecurity. Thus, in line with Dentand Goldberg (1999), change, when threatening security, can engender resistance toloss. However, the data analysed here provided evidence relating directly to resistanceto change. It may be, drawing on Craig (cited in Poole, 1984), that change is one input inthe process of IR conflict.

We can consider the outputs of change related IR conflict as the impact of IRconflict, which as noted can be evaluated in terms of effect on productivity, stabilityand adaptability (Pondy, 1967). Buchan (2000) noted the potential for employeerelations to limit the pace of organisational change, while Abbott (2007, p. 63)commented on what the authors term “managerial paralysis” whereby “securingindustrial peace becomes a more important goal than achieving business objectives”(Abbott, 2007, p. 63). Managerial paralysis and precedent may be considered aselements of a feedback loop that influences future interactions between parties in theemployment relationship. While Buchan (2000) noted in the UK that a key function ofHRM is to manage employee relations to further change delivery in healthcare, thefindings of this paper indicate that managing the process of IR conflict and theconversion of change into outputs might also be significant. This is illustrated in thedata through the emphasis on precedent and procedure, combined with the prominenceof change-related resistance as a manifestation of IR conflict. Thus, in line with Rigoliand Dussault (2003), who noted the centrality of the employee cohort in securinghealthcare reform, the paper suggests that IR is central to change implementation inthe sector.

Research limitationsThe limitations of this methodological approach centre on the specificity of theresearch context. First the data pertains to one national context and thereforetransferability of findings to other settings requires some caution. Similarly, while theuse of the Labour Court as a research setting provides value due to its proximity tostrike action in the dispute process, it is one of many IR institutions in the Irish IRsystem. Thus, in line with Drinkwater and Ingram (2005) in the UK, we suggest theneed for further investigation of IR conflict in IR institutions. We also suggest, on thebasis that the workplace is central to IR, that the dispute process is more than likelywithin the bounds of the organisation. Thus in extending research on alternativemanifestations of IR conflict, we emphasise the value in exploring hidden forms of IRconflict within the workplace setting.

Implications for research and practiceWhilst the authors make no claims regarding the current or future demise of the strike,the findings indicate the value in researching alternative manifestations of IR conflictto the study of HRM in healthcare. With regard to the practice of HRM, the paperhighlights the importance of recognising IR conflict in its various forms. However, thisis a difficult task due to the often obscured nature of alternative IR conflictmanifestations. Finally, we posit that HRM in Irish healthcare is largely influenced bythe plurality of the context combined with the embedded interests of professionalgroups, and the focus on precedent.

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Notes

1. Working days lost is considered to be the most useful indicator of strike activity bycapturing the duration of the strike, and the impact on the industry (Eurofound, 2009).

2. The CSO data must be viewed with caution due to the exclusion of work stoppages lastingless than one day (Dobbins, 2009b).

3. In 2009 public-sector wide strike action occurred due to a dispute over pay cuts.

4. Kevin Bonner, Former Secretary to the Department of Labour.

5. The HSE-EA is now the HSE Corporate Employee Relations Services (CERS).

6. Social Partnership was a system of national level pay bargaining between government,union and employer bodies. Created in 1987, Social Partnership collapsed in 2009 during adispute over public sector pay cuts.

7. Presentation on change implementation in 2010, available at: http://per.gov.ie/wp-content/uploads/Presentation_by_Se%C3%A1n_McGrath_Implementing_the_Change_Agenda_in_the_Health_Service.pdf

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Corresponding authorJennifer Cowman can be contacted at: [email protected]


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