Labour Court Database __________________________________________________________________________________ File Number: CD90204 Case Number: LCR12980 Section / Act: S67 Parties: SOUTHERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION;PSYCHIATRIC NURSES' ASSOCIATION |
Dispute concerning promotions in St. Finan's Hospital, Killarney.
Recommendation:
8. The Court has fully considered all of the views expressed in
their oral and written submissions by all the parties to this
hearing.
Given all the circumstances described, it is the view of the Court
that, notwithstanding any issues that arose prior to March, 1988,
the posts which were identified and advised to the unions were the
only ones to be filled through the medium of the "confined"
competition.
Accordingly the Court finds that the additional posts sanctioned
together with such consequential posts as may arise should be
filled by open competition.
The Court so recommends.
Division: MrMcGrath Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD90204 RECOMMENDATION NO. LCR12980
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: SOUTHERN HEALTH BOARD
LOCAL GOVERNMENT STAFF NEGOTIATIONS BOARD
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
PSYCHIATRIC NURSES' ASSOCIATION
SUBJECT:
1. Dispute concerning promotions in St. Finan's Hospital,
Killarney.
BACKGROUND:
2. Following an amendment to the Employment Equality Act, 1977 in
1982, all appointments to supervisory nursing posts (Nursing
Officer and Deputy Nursing Officer) were suspended, pending
national discussions, with a view to reaching an agreement on an
alternative to the traditional promotion by seniority system. A
joint union/management group, which became known as "Psychiatric
Nursing Forum" was established and following several meetings,
which were chaired by an Industrial Relations Officer from the
Labour Court, the Forum Report was issued in 1986. In relation to
the filling of supervisory posts on a permanent basis, the report
provided for the following:-
A. Open Recruitment
Any nurse with the requisite qualification and experience
will be eligible to compete for all supervisory nursing posts
within the psychiatric service. Selection will be by open
competition interview. These arrangements will come into
effect following the holding of a once-off confined
competition.
B. Transitional Arrangements
A 'once-off' confined competition will be held for each
psychiatric hospital to fill existing vacancies at
supervisory level.
All nurses employed in the particular hospital with the
requisite qualifications and experience shall be eligible to
compete.
Open recruitment to supervisory nursing posts in the psychiatric
service was agreed with the psychiatric nursing unions in May,
1988 following acceptance of the 'Forum' Proposals. In accordance
with Section 10 of that Agreement, a 'once-off' confined
competition was held in every psychiatric hospital throughout the
country in June 1988 to fill all the then existing vacancies at
nursing supervisory level. The Unions had been given details of
the number of posts to be filled in each psychiatric hospital from
the confined competition at a meeting with the Local Government
Staff Negotiations Board on the 29th March, 1988. In the case of
St. Finan's Hospital, Killarney, the Unions were advised of the
Southern Health Board's intention to fill 9 Nursing Officer and 7
Deputy Nursing Officer posts from the competition. It was agreed
with the Unions that once appointments were made from the confined
competition all future vacancies at supervisory level would be
filled by open recruitment in accordance with Section 1 of the
'Forum' agreement. Confined competitions took place in June, 1988
in all hospitals and the agreed number of posts, plus the
consequential vacancies, were filled on a permanent basis,
effective from the 1st August, 1988.
3. In July and November, 1988, the Southern Health Board sought
sanction from the Department of Health for a further five nursing
officer posts, pointing out that, if this was forthcoming without
delay, the posts could be filled from the confined competition
panel (this action was agreed with the ITGWU at a meeting at St.
Finan's Hospital on the 13th July, 1988). However, sanction was
not received until 1989 and when the Board informed the PNA of its
proposals, the Union immediately objected, arguing that these
posts would have to be filled by open competition in accordance
with the Forum proposals. Following the failure of local
discussions the PNA referred the case to the conciliation service
of the Labour Court on the 20th November, 1989. A conciliation
conference was held on the 7th December but no agreement was
reached. A further conciliation conference involving the Unions,
SHB and the LGNSB took place on the 30th January, 1990 at which
the following proposals emerged:
1. Three nursing officer posts will be filled from the confined
competition panel. These posts are in respect of:-
(a) night duty relief post.
(b) the ward which it was not possible to close.
(c) the vacancy caused by the assignment of one nursing
officer from St. Finan's to Tralee Day Hospital, for the
time.
2. Two further nursing officer posts in respect of Killarney and
Listowel Day Hospitals would be filled from the next open
competition.
3. Consequential vacancies arising from the filling of the posts
listed at (1) above, will be filled from the next open
competition.
These proposals were rejected by the PNA members and on the 24th
April, 1990 the dispute was referred to the Labour Court for
investigation and recommendation. A Court hearing was held on the
29th May, 1990. Subsequent to the hearing, the parties submitted
further information to the Court.
P.N.A.'S ARGUMENTS:
4. 1. The Southern Health Board through the L.G.N.S.B. was a
party to the national agreement and therefore is obliged to
uphold fully the terms and spirit of that agreement.
2. The L.G.S.N.B. has indicated that the purpose of the 'once
off' confined competition was to fill an identified number of
approved supervisory posts and that no panel was to be put in
place for the filling of any further posts that may be
approved. This has been the case in all other areas.
3. The posts now in dispute cannot be regarded as posts which
would fall within the category of those covered under the
'once-off' confined competition, transitional arrangement.
4. The Board's proposal that Nursing Officer posts be now
filled from the acting up panel could present the PNA with
either
- the upgrading to Nursing Officer of a Deputy Nursing
Officer who never applied for the post of Nursing Officer
or
- the appointment to the post of Nursing Officer of somebody
who competed unsuccessfully for such a position already.
Either situation would not be desirable.
5. There are nurses in the system who would now be eligible
to compete for these posts but due to the requirement of
having five years' staffing experience were not eligible in
1988.
4. 6. Nurses from St. Finan's Hospital have over the last two
years had opportunities to apply through open competition for
supervisory posts in other hospitals. The same should now
apply in reverse.
7. A departure from the national agreement in this instance
would raise many difficult problems in other areas, as staff
who were unsuccessful but were placed high up on panels were
not offered appointments in posts subsequently approved. Such
staff would now have a justifiable grievance. Such a
departure would also bring into question the credibility of
all parties to the agreement and indeed may well render future
national agreements of this kind futile.
S.I.P.T.U.'S ARGUMENTS:
5. 1. The posts in question were among those posts which should
have been filled from the confined competition in 1988, and
failure to do so resulted from an administrative delay rather
than an unwillingness by the employer to have them included.
2. The Union accepts unequivocally that there can be no
exceptions to the general rule that all posts within the
service must be filled on an open competitive basis. However
it is quite clear that the posts involved here are not new
posts and should have been and would have been part of the
confined competition but for delays in the Department of
Health.
3. Concession of this claim will have no implications
whatsoever for any other hospital.
4. The Union asks the Court to recommend that these posts
should be filled in accordance with the proposals of the
Health Board and the wishes of the Union representing 90% of
psychiatric nurses at St. Finan's Hospital, Killarney. The
Court is asked to have regard to the history of this issue and
the extent to which it has been necessary to secure compliance
with the Employment Equality Act over a long period and with
great sensitivity. At all times there has been a recognition
by all parties, including the Employment Equality Agency, that
to force compliance with the literal interpretation of the Act
was simply not possible nor desirable. In that context the
posts in dispute here should be seen as a carry-over from that
time which entitles them to a similar indulgence to that shown
to all other posts in 1988.
SOUTHERN HEALTH BOARD'S ARGUMENTS:
6. 1. In January, 1988 discussion commenced with the Department
of Health regarding the number of posts to be filled from the
once-off confined competition. Submissions were made to the
Department based on the existing staff complements. However,
sanction was not forthcoming for the filling of that number of
posts as it was the Department's view that the number of
nursing officers on night duty was not justified. From an
original submission in respect of St. Finan's Hospital seeking
the filling of 23 nursing officer and five deputy nursing
officer posts, a submission was subsequently sanctioned for
the filling of nine nursing officer and seven deputy nursing
officer posts. In the revised submission cognisance was not
taken of the position in the Day Hospitals in Tralee and in
Killarney and in the proposed Day Hospital at Listowel and
also a reduction of one nursing officer was made in the
expectation that a ward would close. However the patient
numbers did not allow for this ward closure. It further
emerged in discussions with local Management at St. Finan's
that no provision had been made for night duty relief for the
nursing officers and it was decided that it would be desirable
to have a permanent nursing officer on night duty for relief
duties. In summary, five further posts of nursing officer
fell to be dealt with.
6. 2. At a meeting with the Irish Transport and General Workers'
Union (now S.I.P.T.U.) at St. Finan's Hospital on 13th July,
1988 it was agreed that a submission would be made to the
Department for sanction for the extra posts and it was also
agreed that, on the assumption that sanction would be
forthcoming without delay, the additional posts would be
filled from the confined competition. However, some time
elapsed before correspondence on this issue was finalised and
sanctions were received. When sanctions were finally received
in early 1989 the Board entered into further discussions with
S.I.P.T.U. regarding conditions which were to be attached to
the posts in the Day Hospitals (i.e. 5 day working etc).
These negotiations took some time to finalise. It had always
been accepted that the commitment given in July, 1988
regarding the filling of these posts from the confined panel
would be honoured and that any consequential deputy nursing
officer vacancies arising from the filling of these nursing
officer posts would also be filled from the confined panel.
This would then result in the panel being closed off.
L.G.S.N.B.'S ARGUMENTS:
7. 1. The Board is opposed to the filling of any supervisory
posts other than through open recruitment. Any proposal to
fill supervisory vacancies now from the 'once-off' confined
competition of two years ago is totally at variance with what
was agreed with the psychiatric nursing unions.
2. To accede to such a demand in any hospital would leave
other hospital/health board managements open to similar
demands to fill any existing vacancies from the 1988 confined
competition. Furthermore the filling of any supervisory posts
other than through open recruitment is likely to result in
individual nurses taking cases under the Employment Equality
Act, 1977 alleging discrimination on grounds of denial of
access to compete for these posts.
7. 3. It was only because of assurances given by both the unions
and the Local Government Staff Negotiations Board to the
Employment Equality Agency that the 1988 confined competition
was purely a transitional measure that the Agency did not
object to the holding of a confined competition.
4. In all the circumstances the Court is asked to reject
demands for the filling of any further supervisory nursing
posts from the 1988 'once-off' confined competition and to
recommend that all such posts should be filled by open
recruitment in accordance with Section 1 of the 'Forum'
agreement.
RECOMMENDATION:
8. The Court has fully considered all of the views expressed in
their oral and written submissions by all the parties to this
hearing.
Given all the circumstances described, it is the view of the Court
that, notwithstanding any issues that arose prior to March, 1988,
the posts which were identified and advised to the unions were the
only ones to be filled through the medium of the "confined"
competition.
Accordingly the Court finds that the additional posts sanctioned
together with such consequential posts as may arise should be
filled by open competition.
The Court so recommends.
~
Signed on behalf of the Labour Court,
Tom McGrath
___15th__August,___1990. ___________________
D. H. / M. F. Deputy Chairman