FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HEALTH SERVICE EMPLOYERS' AGENCY DEPARTMENT OF HEALTH AND CHILDREN (REPRESENTED BY HEALTH SERVICE EMPLOYERS' AGENCY) - AND - THE NURSING ALLIANCE IRISH NURSES' ORGANISATION SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION PSYCHIATRIC NURSES' ASSOCIATION DIVISION : Chairman: Mr Flood Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. 35 Hour week, (2) Shift premium, (3) Dublin Weighting Allowance.
BACKGROUND:
2. The Nursing Alliance lodged a claim on behalf of its members for the introduction of (1) a 35 hour week (2) the payment of a shift premium appropriate to work patterns and (3) the introduction of a Dublin Weighting Allowance for all staff in Dublin.
Management rejected the Unions' claim.
As agreement could not be reached between the parties the dispute was referred to the Labour Relations Commission. A conciliation conference was held at which no agreement was reached. The dispute was referred to the Labour Court on the 28th March, 2003, in accordance with Section 26(1) of the Industrial Relations Act, 1990. The Court investigated the dispute on the 20th May, 2003.
35 Hour Week:
UNIONS' ARGUMENTS:
3. 1. The Nursing Alliance is seeking the introduction of a 35 hour week for Nurses and Midwives. At present Nurses and Midwives are the only officer grade in the public service who continue to work a 39 hour week.
2. The only reduction in the working week has come by virtue of the programme for national recovery which allowed for a one hour reduction of the working week in 1991 from 40 hours to 39 hours for Nurses and Midwives regardless of their grade.
3. In accordance with the Programme for Prosperity and Fairness (PPF) the claim for a 35 hour week was among the claims presented by the Nursing Alliance to the Benchmarking Body for its consideration.
MANAGEMENT'S ARGUMENTS:
4. 1. Any reduction in working hours for nurses would result in substantial increases in the nursing pay bill and would result in repercussive claims from other health service workers.
2. The implementation of a 35 hour week and the continued maintenance of existing levels of service would require a substantial increase in the number of full-time nurses and /or significant overtime working at a cost ranging from
€170m to €289m annually.
3. In excess of 70% of all health service employees work a 39 hour week.
Shift Premia:
UNIONS' ARGUMENTS:
5. 1. Most Staff Nurses and Midwives are required to work a shift system covering 24 hours a day 365 days per year. Such a system requires a 4 shift rota, or a 12 hour shift system, or a variation of both using a permanent night shift. No other officer grade working in the health area has such a requirement and there are very few employee grades outside of nursing and midwifery who are required to cover the same span of hours in a 39 hour week.
2. The present system for payment of Nurses and Midwives in respect of shift work is, in fact, only a system which provides for unsocial hours allowances in respect of actual unsocial hours worked.
3. Shift workers outside of the health service, who are employed on rotating shifts, tend to be paid a consistent shift premium based on the type of shift cycle which they work.
4. The rates which apply to Air Traffic Controllers and Metrological grades employed directly by the State has for many years been basic minimum when on days plus 13%, and while working shift 27.5%.
MANAGEMENT'S ARGUMENTS:
6. 1. Varied times of attendance have always been a feature of nursing and the unsocial hours compensation which applies is intended to compensate for this pattern of attendance.
2. The Nursing Alliance claims in respect of improved unsocial hours premium payments were examined and adjudicated upon by the Labour Court in 1999, Labour Court Recommendation LCR16330 refers.
3. Funding for additional spending can only come from within existing budgets. The health sector cannot be made an exception in this regard.
Dublin Weighting Allowance:
UNIONS' ARGUMENTS:
7. 1. A study carried out for the Department of Health and Children in relation to maternity hospitals in 1999 showed that while 429 midwives entered employment, 332 exited. The study showed that 34% of those who left did so to relocate outside of the Dublin area.
2. The Minister for Health and Children, at the end of the year 2000, was so concerned about the issue of recruitment and retention of nurses in the Dublin area that he established a committee representative of employers and Trade Unions to consider the question of recruitment and retention in the Dublin area.
3. It is wrong and unfair that the Minister for Health and Children can establish a working group, to address legitimate concerns with regard to recruitment and retention in Dublin, and then for the Government to instruct civil servants on that working group to block discussions on a Dublin Weighting Allowance using the Public Service Benchmarking Body as an excuse for doing so.
MANAGEMENT'S ARGUMENTS:
8. 1. The Nursing Alliance failed in their submission to the Public Service Benchmarking body seeking the introduction of a Dublin Weighting Allowance.
2. The claim for the introduction of a Dublin Weighting Allowance for nurses cannot be dealt with in isolation. Besides the health service, there are approximately 54,000 other public servants working in the Dublin area. The annual cost would be in the region of €264m.
3. The claims before the Court are cost increasing and, therefore, precluded under the Stabilisation clause of the Programme for Prosperity and Fairness (PPF).
4. Under the Stability and Growth Pact of the European Union, Ireland has given an absolute commitment to keep the general Government finances close to balance or in surplus and to take corrective action where necessary.
RECOMMENDATION:
The Court has before it three claims on behalf of the Unions for: -
(1.) The introduction of a 35-hour week.
(2.) An improvement in Shift Allowances
(3.) The Introduction of a Dublin Weighting Allowance.
The claims were lodged under the terms of the PPF and presented to the Public Service Benchmarking Body in accordance with that agreement. The Unions case is that as the Public Service Benchmarking Body chose “to make no comment either positive or negative in relation to any of the three claims” the Benchmarking Body did not consider them.
The Health Service Employers' Agency claims that it was advised by the Labour Relations Commission that the three claims had been referred directly by the Alliance of Nursing Unions to the Commission.
The employers argued that the claims were not properly before the LRC and that they were barred under the terms of the PPF, which prohibited cost increasing claims. Their position was that the claims had been dealt with by the Benchmarking Body, the agreed body for dealing with such claims.
The Management Position:
The management position is that these claims are major cost increasing and are clearly precluded by the Industrial Peace and Stabilisation clause of the Programme for Prosperity and Fairness which states that:
“No cost increasing claims by Trade Unions or employees for improvements in pay and conditions of employment, other than those specifically provided for in the PPF would be made or processed during the currency of the agreement”.
In addition they claim that the new programme Sustaining Progress also specifies that there should be no major cost increasing claims and that only the pay terms provided for in the Agreement will apply.
The Union Position:
The Union position is that the three claims before the Court are unfinished business from the PPF. The claims were legitimately lodged under the terms of the PPF and were presented to the Public Service Benchmarking Body.
The Union argues that in the absence of any comment either positive or negative by the Benchmarking Body in relation to the claims, then the claims were not addressed.
They argue that if they are expected to observe procedures then these procedures should at least provide a response to their claims.
They further argued there is nothing in the National Agreement, which prevents a willing employer granting benefits to their employees where they accept a legitimate reason for doing so.
Comprehensive written and oral submissions were made by the parties. However, the Court before considering the submissions made in relation to the three claims, must address as a preliminary issue the case made by management that the claims are in breach of the PPF and are not properly before the Court, as they have already been assessed by the appropriate body, the Benchmarking Body.
Clause 6 of the PPF states as follows:
“It is accepted in the context of the agreement between the parties on the establishment of the Public Service Benchmarking Body that any outstanding claims or commitments in relation to pay, analogue or other reviews in what ever form by or in respect of any grade, group or category will be subsumed within the Benchmarking exercise and will be dealt with solely within that context”.
It would appear from this clause that the only way these claims can be progressed is through the Benchmarking Body, and that this was done, in accordance with the relevant clause of the PPF.
It is accepted by both sides that submissions were made in relation to these claims to the Benchmarking Body, but there is a difference of opinion as to how the claims were treated by the Benchmarking Body. Management it would appear, believe the claims were considered, the Union view is that they were not considered.
The Court is faced with trying to second guess what the Benchmarking Body has done in relation to its consideration, as in a previous case before the Court. The Court would make the point that this issue could be resolved by a clarification from the Benchmarking Body as to whether they did consider these issues or not. However, as in the previous case this option does not appear to be available to the parties. The Court must therefore make a judgement on the operations of the Benchmarking Body.
The Court having examined in detail the relevant sections of the PPF and taking into account the work of the Benchmarking Body in so far as it is public, takes the view, given that there is no comment to the contrary, that the Benchmarking Body considered all the inputs submitted in relation to the various jobs it was considering.
In this context, again in the absence of any comment to the contrary, the Court must assume that the Benchmarking Body considered the submissions made in relation to the three claims in dispute in this case and took them into account when making its judgement.
Given the acceptance by the parties to the PPF that the only means of addressing any outstanding claims is through the Benchmarking process, that claims would be dealt with solely within that context, and the Court's judgement that the Benchmarking Body did consider the submissions made in relation to the matters in dispute, the Court does not recommend concession of the Unions' claim in this case.
Signed on behalf of the Labour Court
Finbarr Flood
18th June, 2003______________________
LW/MB.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Larry Wisely, Court Secretary.