Labour Court Database __________________________________________________________________________________ File Number: CD87198 Case Number: LCR11528 Section / Act: S67 Parties: HEALTH BOARDS - and - ITGWU;PNA;FWUI |
Claims, on behalf of approximately 5,000 psychiatric nurses for: (a) compensation for loss of promotion, (b) the filling of unsanctioned posts.
Recommendation:
12. Claim (a) - Compensation for Loss of Promotion
The Court, having regard to the serious financial position of the
Health Service does not recommend that compensation should be paid
now to nurses whose promotion prospects have been reduced as a
result of the implementation of the Employment Equality Act, 1977.
Claim (b) - The Filling of Unsanctioned Posts
The Court, having regard to the circumstances of the filling of
these posts and having regard to the terms of the settlement
proposals of 10th May, 1983, recommends that as many as possible
of them be filled by competition as soon as possible and that the
management's offer of an allowance (for unsuccessful applicants)
of 90 per cent of the difference between the maximum of the salary
for the nurse's substantive post and the maximum of the next
promotion post be accepted.
Division: CHAIRMAN Mr Shiel Mr Devine
Text of Document__________________________________________________________________
CD87198 THE LABOUR COURT LCR11528
CC87440 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR11528
Parties: HEALTH BOARDS
(Represented by the Local Government Staff Negotiations Board)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
(NATIONAL NURSING COUNCIL)
PSYCHIATRIC NURSES ASSOCIATION
FEDERATED WORKERS' UNION OF IRELAND
Subject:
1. Claims, on behalf of approximately 5,000 psychiatric nurses
for:
(a) compensation for loss of promotion,
(b) the filling of unsanctioned posts.
Background:
2. Section 17(2)(c) and (d) of the Employment Equality Act, 1977,
allowed for the exclusion of members of either sex from particular
posts or assignments by reasons of privacy or decency. The
Department of Health and the various Health Boards interpreted
these sections as applying to psychiatric hospitals. This
interpretation allowed for a system of promotion that was based
purely on seniority and on sex-segregated panels.
3. Statutory Instrument No 302 of the 1982 European Communities
Employment Equality Regulations repealed Section 17(2)(c) and (d)
of the Employment Equality Act and the Irish Government was
required to bring psychiatric hospitals within the scope of the
1977 Act. This meant, among other changes, that the traditional
system of promotion had to be changed. The Employers and the
Unions agreed to enter into discussions on these matters and these
were conducted at what became known as the Psychiatric Nurses
Forum. An important background to these discussions is the
industrial dispute which took place in Saint Mary's Psychiatric
Hospital in Castlebar. This strike began on the 18th April, 1983
and on the 10th May a settlement formula was agreed between the
parties which contained the following provisions:
"noting the position of the Unions, the nurses who had an
entitlement to permanent promotion under the 1971 promotion
agreement and who fell due for promotion to permanent posts
between September 30th, 1982 and the issue of findings by
the Equality Officer (EE14/1983) on May 8th, inclusive.
Both sides recognise, in relation to such nurses who fail to
be promoted under any new system which may be agreed,
(a) that there will be a loss for such nurses;
(b) that there will be compensation to minimise this loss,
and
(c) that the amount and nature of this compensation shall
be a matter for the joint forum."
Following further local level discussions the following terms of
reference for the Joint Union/Management Forum on Psychiatric
Nurses was agreed:
The Joint Union/Management Forum, having regard to
(i) the desire of the parties to bring about improvement
in the Psychiatric Service;
(ii) the Unions' claim that those who would be adversely
affected by changes in the promotion system should be
compensated;
shall meet, under the chairmanship of Mr T A Bunyan, with a
view to reaching agreement on the following and other
related issues in the Psychiatric Nurses Service -
1. Status of trainee psychiatric nurses,
2. Recruitment of qualified nurses,
3. Promotion to supervisory posts,
4. Integration of male and female staff.
Any proposals emanating from this Forum must have regard to:
(i) The terms of the Employment Equality Act, 1977, as
amended;
(ii) Equality Officer's Recommendations EE11/81 and EE14/83;
(iii) The written Management/Union Formula agreed on the 10th
May, 1983.
4. Twenty three meetings of the Forum took place between 1983 and
1986 and at the penultimate meeting on the 7th January, 1986, a
sub-committee was appointed which produced draft proposals for a
new system of selection to supervisory posts which had been one of
the major obstacles confronting the Forum. These proposals,
together with other outstanding issues were discussed at the final
meeting of the Forum on the 9th September, 1986, and formed the
basis of Management's final offer to the Unions. The two issues
of compensation for loss of promotion and the filling of
unsanctioned posts could not be resolved and on the 6th March,
1987, the Unions sought referral of these to the Labour Court.
Management was agreeable to this and on the 11th March the issues
were referred to the Labour Court for investigation and
recommendation. Two Court hearings were held on the 20th and on
the 30th March. This latter hearing was adjourned to allow
Management consider proposals from the Court. Following the
introduction of the 1987 Budget by the Minister for Finance, a
further hearing, scheduled for April, was postponed indefinitely
at Management's request.
Claim (a) - Compensation for loss of promotion
Background:
5. Following the changes in Equality legislation Management
insists that the only legally acceptable promotional system is
that based on merit and open competition. This is rejected by the
Unions which claim that it was only the use of sex-segregated
panels, and not seniority, that was found to be discriminatory.
Furthermore, they argue, the new proposals would mean that many of
their members who were acting-up or were within sight of promotion
and were unsuccessful in their applications would lose out
considerably in pay and pension entitlements and should be
compensated fully. Management was not agreeable to this claim nor
to its extension to include those in sight of promotion and
offered those in an acting-up capacity an allowance of 66 2/3% of
the difference between the maximum of the salary for the nurse's
substantive post and the maximum of the next promotional post. It
later increased this offer to 90%. A nurse can only be in receipt
of one such allowance and in the event of later obtaining
promotion the allowance will cease to be paid. In addition it is
proposed that unsuccessful candidates who have been acting-up to
relieve substantive post holders who are on leave for reasons such
as sick leave, maternity leave, annual leave, special leave, etc,
will not be eligible for the allowance.
Unions' arguments:
6. (a) The Unions' claim is that there should be financial
compensation for those within the Service who had a
realistic expectation of promotion. In theory this
includes every single nurse down to the most recently
recruited student.
(b) The Unions made extensive efforts to negotiate a
compensation package for those people who would lose out
as a result of the proposed changes. The key demand from
the point of view of promotions was for the introduction
of a series of long service increments which would
protect the earnings and superannuation position of any
nurse who failed to be promoted. It should be noted that
it is exceptional that any nurse would retire on the
Staff Nurse pay scale (the current Staff Nurse scale has
nine points, from #9,426 to #11,770, the Deputy Charge/
Ward Sister scale has seven points, from #11,436 to
#12,942 while the Charge/Ward Sister scale also has seven
points, from #11,770 to #13,277).
(c) Traditionally, male nurses were promoted to Deputy within
the range of 15-25 years service, therefore the loss for
those who fail to be promoted under any system would in
current terms be #1,172 per annum. Subsequent promotion
to Charge Nurse generally occurred in the range of 20-30
years service, therefore Deputies who fail to achieve
promotion will lose #335 per annum in current terms. For
those Staff Nurses who may reach retirement age without
promotion the total loss in current terms would be #1,501
per annum.
(d) Psychiatric Nurses have pursued their careers in the
almost certain knowledge that promotion to the highest
Ward Supervisor level would be attained well in advance
of retirement age. The loss to those who would be
adversely affected if a change in the system was
introduced would therefore be quite significant, both in
terms of on-going earnings and pension entitlements. As
the Service is now contracting it is clear that unless
nurses gain a promotion within the next few years there
is little or no possibility of them ever getting promoted
for the rest of their careers.
(e) A further problem for a significant section of the
profession is that they are now being told that the only
chance of career advancement is through a competitive
interview. Some of these people have no experience or
training in the interview process and have never sat an
interview since the day they entered the Service. They
will be at an inevitable and unfair disadvantage in any
competitive situation for a number of reasons. These all
relate to their opportunities for further qualifications
and the quality of their initial training. This is so
because the quality of nurse training has been greatly
changed and improved in recent years. While the more
experienced nurses are safe and caring practitioners,
they could not reasonably compete on theoretical,
clinical matters with younger nurses on a fair basis.
Management must bear a heavy responsibility for this as
the provision of in-service training and up-dating of
skills, etc, is simply deplorable. The onus is on
Management to ensure that those nurses would not be at a
disadvantage in future competitions for promotion.
(f) In the Unions' view a proper phasing approach and the
progressive implementation of compensation at the point
where nurses would have been promoted under the existing
system will minimise the cost and spread its effect over
a long period. Compensation would be confined to those
working in the service recruited under the terms of the
present promotion arrangements. This settlement could be
considered as a "special case" and would not cause any
repercussive claims.
Management's arguments:
7. (a) Management rejects the claim for compensating those
within sight of promotion for loss of earnings and
pension benefits for the following reasons:
- the changes in the promotion system come as a direct
result of the Employment Equality Act, 1977, as
amended;
- the bad precedent of compensating potential
beneficiaries of a promotion system which has been
found to be illegal and discriminatory as far back as
May, 1983 (EE11/1983 refers);
- the totally arbitrary distinction between the
generality of nurses and those "within sight of
promotion";
- the material difference between those presently acting
in permanent vacancies and those "within sight of
promotion" where the former group would actually
suffer a reduction in earnings if unsuccessful at
competition;
- the settlement formula that gave rise to the
establishment of the Psychiatric Nurses' Forum clearly
limited compensation to those 'in situ'. The proposal
therefore to compensate those in an acting capacity,
unsuccessful at competition, is purely an extension of
the original settlement formula;
- the transitional arrangements contained in the Forum
proposals are exceptional and an indication of the
lengths that Management was prepared to go in an
attempt to effect a smooth transition from the
seniority system;
- the protracted nature of negotiations resulted in a
much larger number of nurses than was originally
envisaged being brought within the ambit of the
compensation package (500 plus);
- the underlying assumption on the Unions' part that
every nurse retires in a promoted post is fallacious.
Over the last decade at least 25% of nurses retired at
staff nurse level;
- a guarantee of compensation for nurses will act as a
major disincentive for them to compete successfully
for supervisory posts in the future.
(b) Management are also opposed to the concept of the
introduction of long service increments as a means of
compensation. There is no group within the Health
Service in receipt of long service increments since 1974
when they were abolished following a claim from general
trained nurses.
(c) The Psychiatric Nursing Unions, in a submission to the
Labour Court in 1969, declared themselves totally opposed
to the notion of long service increments and asked the
Court to "condemn any attempt by Management to lengthen
the salary scales".
(d) The claim for long service increments would inevitably
precipitate a claim for restoration of differentials from
both trainee nurses, supervisory and managerial grades.
In addition there would be repercussive claims in both
general trained nursing and paramedical grades. Every 1%
increase for these grades (equivalent to a long service
increment of #120 per annum) would increase the Health
Service payroll by #3.5m per annum.
(e) The Labour Court will be aware of the very substantial
increases secured by Psychiatric Nurses over and above
wage round increases in the last six years, ranging from
35% to 40%.
(f) In the context of the Forum proposals, the Unions sought
certain guarantees in relation to how the proposed
allowances would be treated for superannuation purposes.
In addition, the Union also sought assurances that "there
would be no adverse superannuation implications for those
retired with the Charge Nurse/Ward Sister designation".
Management has acceded to both these requests in that the
90% allowance for unsuccessful candidates will be
reckonable as an emolument for superannuation purposes
and the change of title to Nursing Officer, and Deputy
Nursing Officer is to comply with the terms of the
Employment Equality Act, 1977, as amended and will have
no adverse superannuation implications for those who
retired from Charge Nurse /Ward Sister and Deputy Charge
Nurse/Deputy Ward Sister posts.
Claim (b) - the filling of unsanctioned posts
Background:
8. Management insists that any nurses promoted or acting-up in an
unsanctioned post prior to 1982 will have to undergo a competition
for permanent appointments. This is unacceptable to the Unions
which argue that the delay in sanctioning these posts is purely an
administrative one and members should not have to suffer as a
result.
Unions' arguments:
9. (a) This claim is on behalf of nurses who were placed in
posts prior to September, 1982, on the then perfectly
legal basis of their seniority in cases where these posts
had not been sanctioned by the Department of Health.
Precisely why sanction was not sought or obtained is
somewhat academic for the purposes of this claim except
to say that Management's negligence in this respect might
have inclined it to make greater efforts to ensure that
people in this category would not lose out.
(b) The nurses in question are making the entirely reasonable
point that they were promoted legally prior to any change
in the law and that they should not be expected to
compete for posts which they have been holding, in some
cases for well in excess of ten years.
Management's arguments:
10. (a) The Unions have sought the automatic appointment of
approximately 100 psychiatric nurses acting-up in
"unapproved" posts. These were acting appointments made
purely in the context of a local situation and without
the sanction of the Minister for Health. These posts
have no legal status and can only be filled in a
permanent capacity when they have been duly sanctioned by
the Minister for Health, in accordance with Section 14 of
the Health Act, 1971. Management is prepared in the
context of implementing the Forum proposals to seek the
sanction of the Minister for Health to approximately 100
Supervisory Nursing Posts that were heretofore
unapproved.
(b) There is a legal impediment to the automatic
retrospective appointment of nurses to these unapproved
posts either prior to or post 1982 as the posts have no
legal status. Furthermore, the question of automatic
appointments to supervisory posts cannot now arise
against the background of the Equality Officer's
Recommendation EE14/83. Management has consulted with
the Employment Equality Agency on this point and in the
opinion of the Agency "... the Equality Officer's interim
recommendation implies that these nurses must now compete
for permanent appointments" i.e. those nurses in
unapproved posts.
11. A further Court hearing into the dispute was held on the 25th
September, 1987. At this hearing Management informed the Unions
and the Court that due to financial cutbacks in the health
services following this year's Budget, it had no option but to
withdraw any offers made to the Unions in earlier discussions. It
also stated that only essential vacancies would be filled and
these would be subject to Ministerial approval. Insofar as
possible these essential vacancies would be filled by appropriate
staff redeployed from agencies where they are surplus to needs.
In reply, the Unions expressed disappointment and dissatisfaction
with Management's stance and accused it of reneging on the
proposals put forward in September, 1986. This was rejected by
Management who argued that it could have delivered on the
proposals in 1986 but implementation was impossible because of
delays in reaching acceptance among the Unions' members. It
claimed that the offer made was contingent on it being accepted
and implemented by the end of 1986 and that the current situation
in the health services meant that these proposals were no longer
on offer. The Unions view was that the offer was not conditional
on being accepted within a specified timescale and that any delays
were unavoidable as they had to go through their democratic
process to reach acceptance of the proposals.
RECOMMENDATION:
12. Claim (a) - Compensation for Loss of Promotion
The Court, having regard to the serious financial position of the
Health Service does not recommend that compensation should be paid
now to nurses whose promotion prospects have been reduced as a
result of the implementation of the Employment Equality Act, 1977.
Claim (b) - The Filling of Unsanctioned Posts
The Court, having regard to the circumstances of the filling of
these posts and having regard to the terms of the settlement
proposals of 10th May, 1983, recommends that as many as possible
of them be filled by competition as soon as possible and that the
management's offer of an allowance (for unsuccessful applicants)
of 90 per cent of the difference between the maximum of the salary
for the nurse's substantive post and the maximum of the next
promotion post be accepted.
~
Signed on behalf of the Labour Court
12th November, 1987 John M Horgan
DH/PG Chairman