Labour Court Database __________________________________________________________________________________ File Number: CD90183 Case Number: LCR12819 Section / Act: S67 Parties: BROTHERS OF CHARITY SERVICES - and - S.I.P.T.U. (NATIONAL NURSING COUNCIL |
Dispute concerning the retrospective payment of annual leave premiums.
Recommendation:
5. The Court has fully considered the oral and written
submissions of the parties. The Court finds it unacceptable that
the obligations to the staff concerned were not discharged in
accordance with the provisions made and contained in the
Department of Health circular letter. The Court also considers
that specific arrangements should be made to ensure that the
contents of Department of Health circulars are fully and
expeditiously made available to all staff concerned, particularly
circulars having an impact on terms and conditions of staff. The
Court in the circumstances of this case recommends that the issue
be resolved by the payment of six years annual leave premiums (to
31st March, 1989).
Division: MrMcGrath Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD90183 RECOMMENDATION NO. LCR12819
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: BROTHERS OF CHARITY SERVICES
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
S.I.P.T.U. (NATIONAL NURSING COUNCIL)
SUBJECT:
1. Dispute concerning the retrospective payment of annual leave
premiums.
BACKGROUND:
2. The Holiday (Employees) Act, 1973 provides for the inclusion
of premium payments in pay during annual leave. In 1975 the
Department of Health issued a circular to each Health Board and
participating voluntary hospital, giving sanction for the
implementation of this provision. In June, 1989 the Union
recruited a number of nurses employed in the organisation who had
previously been represented by the Irish Nurses Organisation
(I.N.O.). The I.N.O. had previously made a claim on behalf of
nurses and discussions were ongoing (this issue was subsequently
the subject of a Labour Court hearing on 22nd February, 1990).
The Union is claiming six years retrospective payment of annual
leave premiums prior to 1986, as it is of the opinion that a claim
was made by the I.N.O. at this time. Management's position is
that a claim was served by this Union in August, 1989, that it
would apply the payment from 1989, but that it did not receive the
Department of Health circular and official sanction is required
from the Department of Health for the funding of such payments.
On 29th August, 1989 the matter was referred to the conciliation
service of the Labour Court. A conciliation conference was held
on 9th November, 1989 at which no agreement was reached and on 9th
February, 1990 the matter was referred to the Labour Court for
investigation and recommendation. The Court investigated the
dispute on 22nd February, 1990.
UNION'S ARGUMENTS:
3. 1. Management has claimed that it did not receive the 1975
circular from the Department of Health. While accepting that
this claim is made in good faith, it must be pointed out that
other Brothers of Charity institutions have been paying annual
leave premiums for a considerable number of years and must
therefore, have been in receipt of this circular or some other
instruction containing sanction to pay the annual leave
premium. In any event, the nurses concerned should not be
penalised for the failure of either the Department of Health
or this organisation to either circulate or act upon both the
terms of the Holidays (Employees) Act, 1973 and the sanction
for implementation of these.
2. Management conceded this right to non-nursing night
workers in 1983 and clearly defined the right in the nurses'
employment contract of 1983 (details supplied to the Court).
One nurse who enquired about her rights in 1983 was
misinformed and despite having conceded it to one group of
workers, management consistently failed to meet its obligation
to apply the Act equally to all workers. There is substantial
verbal testimony available to support the existence of a claim
for this payment by the I.N.O. in 1986. It is the Union's
view that the existence of a written claim even if loosely
worded and/or the existence of a verbal claim is sufficient
grounds for deciding that a claim existed at this time.
3. In 1987 the Labour Court recommended concession of a claim
on behalf of student nurses in the North Infirmary, Cork for
six years retrospection of premium payments (L.C.R. No. 11520
of 10th November, 1987 refers). In 1988, a claim for six
years retrospection of annual leave premiums was conceded in
the Victoria Hospital, Cork, on the basis that the Department
of Health had agreed to make the funds available. It would
therefore be totally contrary to natural justice if the nurses
concerned in this claim were to be awarded anything less than
six years retrospection. In the circumstances, the Union's
claim for six years retrospection prior to 1986, or from the
date the Court decides the first claim was lodged should be
conceded.
MANAGEMENT'S ARGUMENTS:
4. 1. The Union is of the view that the departmental circular
should be interpreted as having automatic effect in this
organisation. However, management rejects this view as the
circular was not directed to the organisation. Management
never received the circular and there had never been a claim
prior to 1989 and therefore no sanction on this matter from
the Department of Health. When a claim is served by a trade
union, the Department of Health is immediately notified of the
position as official sanction is necessary for the
implementation of any change, as this is the only basis on
which the actual funding is guaranteed.
2. A central issue in this dispute is whether a claim served
in 1989 can have six years retrospection. Indeed it is also
implied by the Union's position that in fact no claim was ever
necessary. It is management's view that if the Court is being
asked to support both of these assumptions, it is being asked
to establish precedents on both principles as argued by the
Union. This organisation operates on an annual budget system
which depends almost exclusively on the allocation from the
Department of Health. No funds have been provided for this
claim and we are not therefore in a position to do anything
other than restate our position on it. The Union's claim for
retrospective annual leave payments should be rejected. In
addition, it should be noted that management had to correct an
error which had occurred where nurses were taking holidays in
excess of their entitlements. Therefore, the principle of
double payment arises, which would have to be taken into
account if retrospection of annual leave premiums was
conceded.
RECOMMENDATION:
5. The Court has fully considered the oral and written
submissions of the parties. The Court finds it unacceptable that
the obligations to the staff concerned were not discharged in
accordance with the provisions made and contained in the
Department of Health circular letter. The Court also considers
that specific arrangements should be made to ensure that the
contents of Department of Health circulars are fully and
expeditiously made available to all staff concerned, particularly
circulars having an impact on terms and conditions of staff. The
Court in the circumstances of this case recommends that the issue
be resolved by the payment of six years annual leave premiums (to
31st March, 1989).
~
Signed on behalf of the Labour Court
Tom McGrath
__________________________
2nd May, 1990. Deputy Chairman
U.M./J.C.