FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WESTERN HEALTH BOARD (REPRESENTED BY THE HEALTH SERVICE EMPLOYERS AGENCY) - AND - A WORKER (REPRESENTED BY THE IRISH NURSES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's recommendation IR3810/01/JH.
BACKGROUND:
2. The issue in dispute is the Union’s claim for full pay to be paid to an employee while undertaking a full time educational course for a Diploma in Child and Adolescent Psychiatric Nursing. The employee concerned is employed as a Staff Nurse on a job-sharing basis. In 2000, she was granted leave of absence with pay to pursue the full time course and payment of her college fees.
The Union contends that the employee should have been paid a full time salary, based on 39 hours, while on the course, but that she only received her normal salary, which is based on a 19.5 hour working week. Another nurse, who is employed on a full time basis, undertook the course with the claimant and was paid a full salary based on a 39 hour week. The Union referred the issue to a Rights Commissioner for investigation. The Rights Commissioner found in favour of the claimant and issued her recommendation on the 11th of October, 2001, as follows:
“On the basis of the submissions made and for the reasons set out in the forgoing conclusion I recommend concession of (the worker’s) claim. She is to receive full salary while she undertook the diploma course in child and adolescent psychiatric nursing on the same basis as her full time colleague. I note from the Board’s submission that (the worker) did receive some overtime payments where these were applicable. The parties should examine whether the overtime payments are still justified having regard at all times to the hours worked by and the payments made to her colleague so as to ensure there is equity of treatment between the two nurses.”
(The worker was named in the Rights Commissioner’s recommendation).
The Health Board appealed the recommendation to the Labour Court on the 21st of November, 2001, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal in Galway on the 27th of February, 2002, the earliest date suitable to the parties.
BOARD'S ARGUMENTS:
3. 1. The claimant applied for, and was granted, job-sharing. She accepted the conditions of employment, which specified that her remuneration would be half that applicable to full time workers. Her entitlement to annual leave, sick leave, etc, would also be pro-rata.
2. The course undertaken by the claimant was voluntary. The qualification was not a requirement of her job. Voluntary participation on the course cannot be treated as work for the purposes of pay. The rate of pay should not be based on the activity as recommended by the Rights Commissioner, but should be based on the status of the worker’s employment as provided for in her contract of employment.
3. The circular issued by the Department of Health and Children regarding funding of certain nursing courses states that nurses should receive ‘full pay’. It was the clear intent of this circular that nurses should receive their normal pay, rather than suffer a reduction in pay, as had previously been the case.
4. The Rights Commissioner conferred undue weight to a European Court of Justice decision – Arbeiterwohlfarht der Stadt Berlin v Monika Botel. The circumstances of that case were significantly different from those pertaining in this case, in that the issue was extended working hours within the workplace. The Botel case arose from the interpretation of a German law and there is no comparable law existing in Ireland.
5. Concession of the claim would have enormous implications throughout the health service where a variety of different work arrangements are in existence. Full time or part time workers, who voluntarily pursue an educational course in the evenings or at weekends, may claim that such attendances should be treated as work for the purposes of pay.
UNION'S ARGUMENTS:
4. 1. The findings of the Rights Commissioner were correct and should be upheld. The issue of the voluntary nature of the course is misleading, as no course in the nursing area is compulsory. However, the employer’s various levels of approval allowed the Rights Commissioner to conclude that participation in this course should be treated as work for the purpose of pay.
2. The Health Board has appealed the Rights Commissioner’s recommendation on financial grounds. However, the European Court of Justice found in the Hill and Stapleton case that “an employer cannot justify discrimination arising from a job-sharing scheme solely on the ground that avoidance of such discrimination would involve increased costs”.
3. The circular issued by the Department of Health and Children states that nurses should receive ‘full pay’ while on full time educational courses. The claimant believed that she would receive full pay while completing the course, but her pay was half of that paid to her colleague.
4. The issue is that of equitable treatment. Two nurses applied to go on a full time course. Both applications were approved and both should be paid equally for their similar hours of participation on the course. The Rights Commissioner made her recommendation based on the ‘activity rather than the status of the individual’. It was her view that the claimant was treated unfairly and ‘did not receive like pay for a like time and work’.
DECISION:
The Court has considered the submissions of the parties and the cases cited at this appeal of the Rights Commissioner’s recommendation. While reference has been made to European Court of Justice cases and to the Protection of Employees (Part-Time Work) Act, 2001, no claim has been brought under the Employment Equality Act, 1998 or the Protection of Employees (Part-Time Work) Act, 2001. This claim has been referred under the Industrial Relations Act, 1969 and the Court will make its recommendation accordingly.
The worker is employed as a nurse in a job sharing capacity. In September, 2000, she applied to her employers to attend a nursing course for a Diploma inChild and Adolescent Psychiatric Nursingat Dublin City University. Her employers, the Western Health Board, granted her application and agreed to pay her while she attended the course and agreed to pay all fees. In return she gave a commitment to the Board to remain in its employment for a minimum period of two years following the completion of the course, otherwise a refund of the cost of the course would have to be made. The appellant sought payment at full pay for the duration of the course as she was attending a full time course.
While the Court accepts that attendance at these courses is not mandatory, and indeed employment in the public health service is not necessary to gain access to the course, training in this specialized area is beneficial to both the employer and the employee. Prior to these two nurses, none of the staff nurses employed at St. Anne’s Children's Centre had training or experience in child and adolescent mental health. Therefore, it is a distinct advantage to have two nurses trained in this area. Indeed, the Centre has for many years been encouraging nurses to undertake training in this Diploma. This is evidenced by the letter dated 22nd August 2001 to the Union, from the Director of Nursing of the Centre, in which she states: -
- Our ambition for the future is to have the majority of our nurses trained with a nursing qualification in child and adolescent psychiatry.
For many years the clinical Director and myself have encouraged nurses to train in the above Diploma.
It is also a service advantage to have two nurses trained in child and adolescent psychiatric nursing as they in turn can encourage their colleagues to train in the speciality and supervise future nurses on training placements.
The employer additionally required the employee to commit to working for the Health Board for a period after the training course. It is further evidenced by the payment of an allowance on successful completion of the course provided the person is working in a designated clinical setting where the course is recognized, which was the situation in this case.
The Union has cited legal precedent for payment such as this. The case ofArbeiterwohlfarht der Stadt Berlin v Monika BotelC360/90 (Botel case) in which The European Court of Justice held that a refusal to pay a part time worker for attendance at a training course for the Staff Council, where such attendance took place outside her normal hours of work, and where full time workers were paid for such attendance, was found to be discriminatory, unless such a policy was objectively justifiable on grounds unrelated to the worker’s sex. The Union also cited theHill & Stapleton v The Revenue Commissionerscase C243/95 to argue that the Board cannot rely on the financial implications of any such decision.
The Board argued that the Botel case does not apply as it dealt with legislative provisions in the German National Law.
In the Botel case the Court of Justice stated that a provision of National Law which affected part-time workers who are staff council members attending a training course which lasted longer than their normal duties and which can help them carry out their duties more effectively, and which deprived them of any compensation in the form of paid leave or extra pay up to the limit of full time working applicable in the same undertaking, where considerably more women than men hold such part time posts, is discriminatory, unless the member state can establish that the legislation in question is justified by reasons which are objective and unrelated to any discrimination on grounds of sex.
The Board has advanced the grounds of cost as a justification for not paying the employee. The Court cannot accept this contention. The Court of Justice in Hill and Stapleton has ruled out cost as “objective justification”.
In arriving at its conclusion, this Court has taken account of the relevant case law and the relevant legislation. It is an accepted principle in industrial relations that part time workers doing the same work as full time workers should be paid the same as full time workers. In this particular case, the part time worker was doing exactly the same as the full time person who was seconded with her and the Court recommends that the Rights Commissioner's recommendation should be upheld.
The Rights Commissioner’s recommendation referred to the overtime payments made to the claimant and recommended that the parties should examine whether the overtime payments were still justified having regard to the hours worked and the payments made to her colleague, so as to ensure equity of treatment between the two nurses. The Court endorses this view and recommends accordingly.
The appeal is, therefore, disallowed.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th June, 2002______________________
D.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Dympna Greene, Court Secretary.