Labour Court Database __________________________________________________________________________________ File Number: CD9072 Case Number: LCR12820 Section / Act: S67 Parties: BROTHERS OF CHARITY SERVICES - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
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__________________________________________________________________
CD9072 RECOMMENDATION NO. LCR12820
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: BROTHERS OF CHARITY SERVICES
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
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 1983 a dispute arose in the
Brothers of Charity Services which was resolved following an
agreement with the Union which included concession of this payment
to non-nursing personnel on night duty. In a letter of 23rd
February, 1989 the Union raised a number of matters for discussion
with management, including the issue of average premium payments
for annual leave for non-nursing personnel on day duty. A local
level meeting subsequently took place at which the Union claimed
retrospection of this payment of six years to 1983 when the night
workers received the payment. The Union's position is that the
workers are entitled to this payment, that at the time of the 1983
claim it understood that these workers were already in receipt of
the payment, and that it was management's responsibility to apply
this payment. Management's position is that a claim was served by
this Union in February, 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. Management subsequently made an
offer of three years retrospection. However this was unacceptable
to the Union and on 30th 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 progress was
made 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. As a result of the Holiday (Employees) Act, 1973 a letter
advising all Health Boards and voluntary hospitals to
implement this provision was circularised in 1975 to all
relevant parties (details supplied to the Court). It is
ironic that an entitlement due to workers under legislation
passed by government and subsequently circulated to employers
by the Department of Health is being reneged upon (details
supplied to the Court). When the average premium payments
were applied to the night duty workers in 1983, the Union
understood that the workers concerned in this claim were
already in receipt of such a payment. In any event the onus
was on Management to apply the terms of the Holidays
(Employees) Act, 1973 to all workers equally. The Union is
not seeking additional pay for workers, but is merely seeking
the application of their statutory entitlements.
2. The workers involved are very aggrieved at the fact that
they have been excluded from this payment and that the
Department of Health will not now concede retrospection of six
years. It is the Union's belief that workers in other Brother
of Charity institutions around the country have benefitted
from this payment for a similar period. If it were not for
the fact that the Union is prohibited under the statute of
limitations from seeking retrospection for a longer duration,
the claim would be that the workers should not be treated less
favourably than those employed in the Southern Health Board,
voluntary hospitals and other private institutions such as
Cork Polio who have had this payment applied since 1975. In
addition, this issue was also dealt with recently in a case
involving the Victoria Hospital and six years retrospection
was conceded. Similarly, in a dispute involving the North
Infirmary the Court recommended retrospection of premium rates
for a period of six years. (LCR No. 11520 refers).
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 this organisation, management had
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.
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.