Labour Court Database __________________________________________________________________________________ File Number: CD9440 Case Number: AD9436 Section / Act: S13(9) Parties: SOUTH EASTERN HEALTH BOARD - and - THE PSYCHIATRIC NURSES' ASSOCIATION |
Appeal against Rights Commissioner's Recommendation No. BC359/93.
Recommendation:
The Court in its consideration of the issue in dispute had regard
to (a) the basis upon which the 21% allowance was paid originally
(b) the reasoning behind the findings by the Rights Commissioner
and (c) the arguments put forward on behalf of the claimant and
the appellant in relation to the Rights Commissioner's
recommendation.
Having considered all of the above, and noting that the claimant
has transferred back into an area in which other Nurse Alcoholism
Counsellors operate, and whose rate of pay is the subject of
review, the Court has decided that the recommendation by the
Rights Commissioner be altered by the following addendum:-
"The arrangement to continue on a "red-circled" basis until
the outcome of the review referred to above, which is
intended to regularise the conditions of Nurse Alcoholism
Counsellors has been finalised and implemented".
Division: MrMcGrath Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD9440 APPEAL DECISION NO. AD3694
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
SOUTH EASTERN HEALTH BOARD
AND
THE PSYCHIATRIC NURSES' ASSOCIATION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
BC359/93.
BACKGROUND:
2. 1. In November, 1983, the worker was seconded from staff
nurse duties at St. Otteran's Hospital to counselling
duties with the South Eastern Regional Council
Assistance Programme (S.E.R.C.A.P.). It was agreed that
the worker would be paid his basic salary plus 21% by
way of compensation for lost premium earnings.
2. S.E.R.C.A.P. was funded by local industry and the Health
Board. The worker continued to be paid by the Board and
his salary was recouped. The worker's secondment came
to an end in February, 1992, when the Board as part of a
rationalisation programme initiated a community based
alcohol counselling service.
3. The establishment of the community based service gave
rise to an additional two appointments. The two new
appointees were paid at the maximum of the nursing
officer's scale.
4. The worker now had a pay advantage on his two new
colleagues. This was unacceptable to the Board and it
offered the worker the option of reverting to the
position of staff nurse or taking up a position of
alcoholic counsellor with the same salary maximum as his
two new colleagues or to retain his salary for 12
months.
5. The Union accepted the third option on the basis that it
could pursue a pay claim on the worker's behalf. A
conciliation conference was held at the Labour Relations
Commission on 26th August, 1992. The Board offered to
freeze the worker's salary at the 1992 level. This was
rejected by the Union.
6. The dispute was referred to the Rights' Commissions
service for investigation and recommendation. A Rights
Commissioner's investigation took place on 14th
December, 1993 and the recommendation as follows was
issued on the 6th January, 1994.
" In the light of the above factors and in particular
in the context of the definite assurances given by
the Trade Union concerning repercussive claims I
recommend that the worker retain, on a personal
basis, the arrangements he has heretofore enjoyed
i.e. the 21% allowance over and above the basic
rate."
*The worker was named in the recommendation.
7. By letter of 18th January, 1994, the recommendation was
appealed by the Board to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. A Labour
Court investigation took place in Kilkenny on 30th
March, 1994.
BOARD'S ARGUMENTS:
3. 1. It is unacceptable to the Board that one staff member
should enjoy benefits in excess of the established rate.
This is unfair to his colleagues and creates an
unnecessary precedent. In the Board's view the Rights'
Commissioner failed to grasp the position with regard to
the worker being assimilated back into health board
staffing (details supplied to the Court).
2. The red-circling of the worker's rate should be viewed
in the context of another worker being represented by
another union which is not party to this dispute. The
Board is prepared to assimilate the worker into the
community based services and is prepared to carry the
extra cost for a period of four to five years. Normally
in these situations compensation for any potential loss
of earnings is awarded.
UNION'S ARGUMENTS:
4. 1. By taking on additional training and study the worker
acquired qualifications to allow him to take up the
position of alcoholism counsellor The worker, on taking
up the position, was compensated for loss of earnings as
the Board recognised that there would be losses. This
has not changed.
2. The Board is now seeking to reduce the worker's earnings
by #2,000 per annum. The Board is insisting on
proceeding with this plan despite its acknowledgement of
the excellence of the worker's service. The Union has
undertaken not to seek to use this arrangement as a
precedent for any future claim on behalf of any other
member of the Union. The worker's present rate of pay
was agreed with the Board (details supplied to the
Court).
DECISION:
The Court in its consideration of the issue in dispute had regard
to (a) the basis upon which the 21% allowance was paid originally
(b) the reasoning behind the findings by the Rights Commissioner
and (c) the arguments put forward on behalf of the claimant and
the appellant in relation to the Rights Commissioner's
recommendation.
Having considered all of the above, and noting that the claimant
has transferred back into an area in which other Nurse Alcoholism
Counsellors operate, and whose rate of pay is the subject of
review, the Court has decided that the recommendation by the
Rights Commissioner be altered by the following addendum:-
"The arrangement to continue on a "red-circled" basis until
the outcome of the review referred to above, which is
intended to regularise the conditions of Nurse Alcoholism
Counsellors has been finalised and implemented".
~ Signed on behalf of the Labour Court
9th May, 1994 Tom McGrath
J.F./M.M. _______________
Deputy Chairman