FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST. VINCENT'S UNIVERSITY HOSPITAL (REPRESENTED BY HEALTH SERVICES EMPLOYERS AGENCY) - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR16910/03/JH.
BACKGROUND:
2. The dispute before the Court relates to a claim by the Union on behalf of its member for recognition, for incremental purposes, for service as a State Enrolled Nurse ( S.E.N ) in the UK. The worker was employed as an S.E.N from 1978 to 1994. Between 1992 and 1994 the worker completed an enrolled nurse conversion course and then worked as a registered nurse until 1997. Employment commenced with the hospital in September 1997 and incremental credit was given for service as a registered nurse resulting in placement on the 3rd point of the incremental scale. The Union contend that their members S.E.N service be recognised as per the established ratio (3:1) (every three years of S.E.N service equates to one year of Registered General Nurse service for the purpose of incremental credit) in determining incremental point, with retrospective effect to September 1997.
- The matter was referred to a Rights Commissioner for investigation and recommendation. Her findings and recommendation issued on the 12th March, 2004 as follows:
“The matter of recognition for S.E.N service is a general matter and my role is not to comment or make recommendations which would have any general effect but rather to examine the agreement that exists in respect of S.E.N service and whether that should apply to the claimant. I am satisfied that the effect of the agreement reached under the auspices of the Labour Relations Commission and subsequently endorsed by the Labour Court is to cover former S.E.Ns who have been employed by the hospital and have been appointed as a staff nurse following the successful completion of a conversion course and a competitive incremental credit". I am satisfied that the agreement dealt with specific circumstances where those involved had been engaged by hospitals in Ireland for an extended period and the refusal of their employers to grant credit for that experience. In the case of the claimant I would not dispute the effect of her experience and the value of that experience to St. Vincent's Hospital. Nonetheless, I am satisfied that she does not qualify under the terms of the Conciliation Conference proposal and that the other claims were based on individual circumstances but derived from that agreement. Based on the submissions made and for the reasons set out in the foregoing, I do not recommend concession of the claim brought by the worker”
The worker was named in the Rights Commissioner’s Recommendation.
On the 19th of April, 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. A Labour Court hearing took place on the 23rd of June, 2004.
3. 1. The Report of the Commission on Nursing 1998 recommends that if a nurse has acquired skills and experience abroad which are of value to the service, then a Nurse Manager should have sufficient discretion within budget to allow her/him to determine the point of entry on the incremental pay scale according to local priorities and needs. Management took an unnecessarily rigid and inflexible approach in refusing to reckon the workers S.E.N service.
2. The Department of Health and Children already recognise the S.E.N qualification as being worth 90% of the Staff Nurse qualification for salary purposes. If the professional experience and seniority acquired by a worker in another Member State are not correctly taken into account, these workers have no, or less favourable access to the other Member State's Public Sector, or, they must start their career from the beginning or at a lower level. The European Court of Justice has ruled that this constitutes unjustified indirect discrimination.
3. It has now been established by the Labour Relations Commission, Labour Court and Rights Commissioner Service, that every three years of S.E.N service equates to one year of Registered General Nurse service for the purpose of incremental credit.
COMPANY'S ARGUMENTS:
4. 1. The S.E.N qualification is not suitable for registration as a nurse in Ireland. The UK equivalent to the Registered General Nurse is the State Registered Nurse, which is a higher level nurse than the S.E.N.
2. Service as an S.E.N is not recognised as genuine nursing experience and such service was not comprehended to be included in any agreement on incremental credit for prior nursing credit.
3. The worker never worked in Ireland as an S.E.N and was never on 90% of the staff nurse salary scale. Assimilation to the staff nurse salary scale took place in the UK in accordance with whatever arrangements prevailed in that jurisdiction at that time. The worker was treated in exactly the same manner as any other staff nurse commencing employment at the hospital and the point of scale on which placement was made was in accordance with existing arrangements and there is no fundamental justification for altering those arrangements in this case.
DECISION:
The Union, on behalf of a Staff Nurse, is seeking recognition for incremental credit purposes for the period when she was employed as a State Enrolled Nurse (SEN) in the UK. The worker was appointed to a staff nurse post in September 1997 and placed on the 3rd point of the Staff Nurse Scale in St. Vincent's University Hospital ; this took account of her service since she became a Registered General Nurse in 1994.
Prior to the completion of her conversion course in 1994, the worker had been employed for a period of over 16 years as an SEN in the UK. The Union contends that her service as an SEN should have been recognised in the same way as an Irish nurse and held that the Rights Commissioner's recommendation was in contravention of EU case law. The case before the Court concerns an appeal of a Rights Commissioner's recommendation, under section 13 (9) of the Industrial Relations Act, 1969 and not a complaint of an infringement of the EU Articles. There are appropriate legislative processes for such complaints.
In 1999 an arrangement was put in place to grant those working as Staff Nurses, who had previous SEN service in Ireland, to receive one point for every three years as an SEN in the hospital concerned.
As a result of LCR No : 16094,agreement between HSEA and SIPTUwas reached in July2001 to grant full incremental credit for Registered Nurses on appointment in respect of all service accumulated by the Registered Nurse in Ireland and abroad. However, according to the employer's representative, this agreement does not recognise service as a SEN or service in any other grade or category other than those identified as genuine nursing disciplines as defined by The Commission on Nursing Report 1998.
Management hold the position that the SEN qualification is not a suitable qualification for registration as a nurse in Ireland and is not recognised as genuine nursing experience.
Having considered all aspects of this claim the Court is satisfied that management were within their rights not to recognise periods of service as a State Enrolled Nurse (SEN) in the UK for incremental credit purposes.
However, in recognition of the worker's placement at grade E Staff Nurse position in the UK since 1988, the Court considers that it would not be unreasonable to afford additional incremental credit, due to the level of her skills and experience.
The Commissions on Nursing Report 1998 at paragraph 7.77 states;
"The Commission recommends that if a nurse or midwife has acquired skills and experience abroad which are of value to the service, then a nurse or midwife manager should have sufficient discretion within budget to allow her or him to determine the point of entry on the incremental pay scale to local priorities and needs".
Therefore, in all the circumstances of this case, the Court determines that management should use its discretion and grant one additional increment with appropriate retrospection to her commencement date.
The Rights Commissioner's recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th_July, 2004______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.