FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HOSPITAL OF THE ASSUMPTION, THURLES (REPRESENTED BY MID WESTERN HEALTH BOARD) - AND - IRISH NURSES ORGANISATION DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. 1. Night break 2. Banked hours
BACKGROUND:
2. The dispute before the Court concerns nursing staff on the night duty roster in the Hospital of the Assumption, Thurles. Management became aware in July, 2003, that nurses were leaving their wards for meal breaks when their understanding was that nurses remained on the ward at all times. This lead to an analysis of hours worked. Nurses on night duty work 11.5 hours by 7 nights amounting to 80.5 hours, 2.5 hours are banked and taken off in lieu. Nurses are paid for 78 hours. Management contend that while nurses are paid for 78 hours, only 77 hours are actually worked as meal break is away from the wards.The claim by the Union on behalf of its members is for the retention of one hours pay and two and a half hours banked taken off as time in lieu by nurses following a week on night duty as this has been the practice for over twenty years.
- Management reject the claim.
- The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 15th April, 2004, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 14th July, 2004, the earliest date suitable to the parties.
3. 1.Nurses within the Hospital of the Assumption have availed of their night duty breaks under the current conditions for over twenty years under the instruction and supervision of their managers.
2. It is accepted within industry that shift workers avail of a paid break and it can be seen that within the healthcare sector this practice is well established also.Nurses within this service have already conceded a half hour reduction in their night duty break and have agreed to engage in cross cover arrangements, in order to assist Management in overcoming nurse shortages and ensuring nursing supervision is available on each ward at all times. Given their displayed flexibility, it is unreasonable now to expect them to lose their break arrangements.
3. The established custom and practice of over twenty years standing has become an implicit part of the members contract of employment and any attempt to remove it will represent significant and unfair diminution of their conditions of work.
MANAGEMENT'S ARGUMENTS:
4. 1. Management need to ensure that payroll returns and payments made to staff are correctly related to hours worked. Meal breaks do not qualify as paid time worked as outlined in the Organisation of Working Time Act, 1997.
2. A newly agreed arrangement is in place in the Hospital whereby nursing staff can now officially leave their blocks for their break as nursing cover is in place for night duty roster meal breaks. Management now rejects the Unions contention that while nurses are away from the ward they are still "on call".
3. From a health and safety perspective and from a best practice perspective, the Board has formalised the position to allow nurses avail of the break which they have clearly indicated they want to maintain and have been unofficially availing of over the last number of years. As a result, the Board only sees two possible solutions to the problems in dispute.
- Option 1.
a. Nurses to take official breaks at night and leave the block.
b. Roster: 11.5 hours x 7 nights = 80.5 hours - 7 x 0.5 hour meal breaks = 77 hours worked.
c. The additional hour to be made up by an earlier starting time of approximately 8-10 minutes per night x 7 nights = 60 minutes.
d. Eliminate the "bank time" ( 2.5 hours ) given to staff.
Option 2.
a. Nurses to have no official break at night.
b. Roster: 11.5 hours x 7 nights = 80.5 hours.
c. Pay for 78 hours ( basic and premium pay )
d. Nurses continue to avail of 2.5 hours off in lieu at a time to be agreed with the Ward Manager.
RECOMMENDATION:
The Court accepts that the practice now in dispute has been so long established in the Hospital by custom and practice that it cannot reasonably be unilaterally withdrawn.
In the circumstances the Court recommends that the arrangement continue to apply to present staff who have benefited from it on a red-circled basis. New staff who commence employment after the date of this recommendation should have either option 1 or 2, as may be agreed between the parties incorporated in their contract of employment.
Signed on behalf of the Labour Court
Kevin Duffy
20th July, 2004______________________
JO'CChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.