FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MID WESTERN HEALTH BOARD - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation IR14284/03/MR.
BACKGROUND:
2. The Claim relates to an appeal by the Union on behalf of a worker of a Rights Commissioner's Recommendation in respect of the payment of an Acting Community Psychiatric Nurse (CPN) Allowance. The worker is based in St. Anne's Day Hospital, Limerick.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 19th April, 2004 the Rights Commissioner issued his recommendation as follows:
"I now formally recommend that the claimant and the INO should accept the relevant terms of the agreement that was reached following the Conciliation Conference that she attended in March 2003 in full and final settlement of this claim"
"Agreement reached with Conciliation Conference March, 2003 - It was agreed to pay one acting allowance between the worker / job sharer on a 50/50 basis effective from 12th February, 2002"
On the 18th May, 2004 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969 and are seeking:
:
- The payment of the appropriate "acting up" allowance in respect of the worker acting in the capacity of a Community Psychiatric Nurse on an ongoing basis.
- The pro-rata retrospective application of this allowance for the 10 years the worker has been acting in this position.
A Labour Court hearing took place on the 8th December, 2004.
- (The claimant was named in the Rights Commissioners recommendation).
3.1 The worker sought and was permitted to act up in the CPN position vacated by her predecessor in 1993. She has continued to do this for over 10 years.
2. The worker clearly took over the post and carried out the same duties as her predecessor in a job sharing capacity, and has at all times been of the understanding that she "acts up" in the CPN post.
3. She is required to carry out the same levels of accountability and responsibility as her colleagues regionally and nationally. She is not remunerated appropriately for this remit.
4. Management contend that the CPN post was abolished and that an alternative "key worker" system was established. The Union argue that the "key worker" system has not changed the duties performed by the worker and she continues to provide a dedicated service to her clients.
BOARD'S ARGUMENTS:
4.1 Management totally rejects the claim submitted by the Union.
2. It is not possible to act up in a position that does not exist. The worker's job sharer partner is in receipt of 50/50 of one acting allowance effective from 12th February 2002.
3. If the agreement is altered this will have a further effect in relation to the worker's job sharing partner.
4. The worker had plenty of time from March to October to indicate any problems with the agreement. It could have been dealt with prior to the issue of the proposal of the Industrial Relations Officer and acceptance by both sides.
5. The Board maintains that a CPN post in St. Anne's has not existed in this area for in excess of 12 years and therefore payment cannot be made to a staff member for same.
DECISION:
The Union, on behalf of the appellant, sought payment of 10 years retrospection of the appropriate "acting up" allowance and payment of the allowance on an ongoing basis.
Having considered the views of the parties expressed in their oral and written submissions, the Court is of the view that the arrangement entered into with the appellant's job sharing partner, to pay the allowance on a 50/50 basis, effective from 12th February, 2002 is fair and reasonable and should be accepted by the appellant. Consequently, the Court concurs with the findings of the Rights Commissioner and upholds his recommendation. The appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th December, 2004______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.