Labour Court Database __________________________________________________________________________________ File Number: CD87567 Case Number: LCR11554 Section / Act: S67 Parties: MIDLAND HEALTH BOARD - and - ITGWU |
Claim for the retention of annual leave entitlement.
Recommendation:
5. Having considered the submissions made by the parties the
Court is of the opinion that the Board's interpretation of the
contract as regards annual leave is correct but having regard to
the circumstances it recommends that the long standing terms
applying to this particular worker should be continued on a
personal basis.
Division: Mr O'Connell Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD87567 RECOMMENDATION NO. LCR11554
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: MIDLAND HEALTH BOARD
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Claim for the retention of annual leave entitlement.
BACKGROUND:
2. This claim concerns a psychiatric nurse who has over twenty
years service with the Board. Since 1980 the worker has been a
community care psychiatric nurse and has 32 days annual leave plus
8 public holidays and 6 church holidays per annum. In 1985 the
Board informed the Union that from the 1985/86 the worker, along
with another community psychiatric nurse who had similar annual
leave arrangements but who is not pursuing a claim at present,
would be granted annual leave in accordance with the national
agreement for the community psychiatric nurses. This entitlement
is 32 calendar days at present which the Board interprets as 4
weeks and 4 days leave. The Union considers the entitlement based
on a five day week to be 6 weeks and 2 days. The Union claimed
that the worker should retain his annual leave entitlement on a
personal basis. The Board rejected the claim. No agreement was
reached through local negotiations and on 1st May, 1987 the matter
was referred to the conciliation service of the Labour Court. A
conciliation conference was held on 15th July, 1987 but no
agreement was reached. On 16th July, 1987 the cases was referred
to the Court for investigation and recommendation. A Labour Court
hearing was held on 10th November, 1987 in Tullamore.
UNION'S ARGUMENTS:
3. 1. The worker has, enjoyed for a long number of years with
the approval of his superiors, a level of holiday entitlement
commensurate with his professional grade. Arbitrarily the
Board is seeking to reduce this and in the process has
rejected reasonable compromise proposals from the Union. At
the very least the worker should be compensated in some way
in lieu of the status quo maintenance.
3. 2. When the worker moved to community care psychiatric
nursing it was a move which would not have been an attractive
proposition for many psychiatric nurses as there was a lack
of promotional opportunities. The community nurses also had
a greater individual responsibility and no opportunity to
earn overtime or other premia payments. The worker's annual
leave entitlement, exclusive of church and public holidays,
was 28 day plus four working days. A condition of these
entitlements was the requirement to voluntarily provide
holiday and sick absence relief. Community nursing was a
separate entity from the institutional service. This
separation of identity is threatened by the Board trying to
absorb the worker and his colleagues into the holiday roster
of St. Fintan's Hospital.
3. The worker's employment in community care was under the
1979 community psychiatric nursing contract of employment.
Clauses 5.5 (working week) and 5.6 (annual leave) must be
taken in conjunction. The red circle emphasis of 5.5
allowing current rostering to be maintained, "on a personal
basis only", should be noted.
4. Thirty-one days (now 32) annual leave were tendered at
that time. Each of those annual leave days can only be taken
during the working week (clause 5.5) i.e. "Monday to Friday".
It should be clear that Saturdays and Sundays are
non-reckonable. Public Holidays (clause 5.7) are recognised
to be separate from and in addition to annual leave.
5. In an effort to reach a settlement the Union proposed
that the other nurse's case be left to one side. But on the
basis of the worker's age (mid fifties) his position be red
circled at 32 days annual leave plus 8 public holidays until
his date of retirement. Therefore, the worker would lose 6
church holidays per annum.
BOARD'S ARGUMENTS:
4. 1. The taking of excess leave by the male community nurses
appears to have its origin in the old management structure.
The Board, having examined the situation, gave instructions
that annual leave be granted to all community psychiatric
nurses on the basis of working days and the granting of leave
in respect of church holidays to cease. The Board has made
no attempt to "claw back" the leave overtaken by the worker.
The Board has acted reasonably in this matter.
2. The worker accepted the terms and conditions agreed
nationally for the post of community psychiatric nurse which
provides that the annual leave entitlement for the grade of
community psychiatric nurse would be 31 calendar days. This
entitlement has now been increased to 32 calendar days. The
Labour Court accepted, in L.C.R. No. 4016, that the practice
of expressing annual leave in terms of calendar days was not
unique in the public service.
4. 3. The worker now has the same annual leave as his
colleagues in the Board and throughout the community nursing
service in the country. Concession of the claim would place
the worker's annual leave out of line with that of nursing
staff generally.
4. Concession of the claim would lead to repercussive claims
from other nursing grades.
5. The draft agreement on pay in the public service 1987,
specifies in relation to annual leave that there will be no
increases in annual leave during the period of the agreement.
6. Since the inception of the grade of community psychiatric
nurse the Board has rostered it on the basis of a five day
working week. Consequently it expressed the annual leave
entitlement as 4 weeks and 4 days. Where community
psychiatric nurses were rostered over a seven day basis
inclusive of an obligation to work public holidays they
receive an additional eight days leave to compensate them for
this liability.
RECOMMENDATION:
5. Having considered the submissions made by the parties the
Court is of the opinion that the Board's interpretation of the
contract as regards annual leave is correct but having regard to
the circumstances it recommends that the long standing terms
applying to this particular worker should be continued on a
personal basis.
~
Signed on behalf of the Labour Court
John O'Connell
______________________
Deputy Chairman.
1st December, 1987
T.O'M/J.C.