FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 S6(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001 PARTIES : CARLINGFORD NURSING HOME (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Request by a trade union or excepted body for a determination in relation to Labour Court Recommendation No. LCR17932.
BACKGROUND:
2. LCR 17932 issued in August, 2004. In it, the Court recommended on the following issues:pay, introduction of a sick pay scheme, shift allowance, overtime, equal treatment and other issues, and a grievance and disciplinary procedure. In September, 2004, the Union wrote to the Court seeking a determination to be issued in respect of LCR17932 in accordance with Section 6(1) of the Industrial Relations (Amendment) Act, 2001. Prior to a further hearing taking place, the issues were referred back to the Advisory Service of the Labour Relations Commission and two meetings took place. As further progress was not possible, the parties attended a Labour Court hearing in the Labour Court on the 18th of March, 2005. The following is the Court's determination:
DETERMINATION:
This is an application by SIPTU for a determination pursuant to section 6(1) of the Industrial Relations (Amendment) Act 2001 in a dispute in respect of which the Court issued Recommendation LCR17932. The Union sought to have a determination in the same terms as the recommendation. The employer opposed the application on the basis that the recommendation had been based on unsound or incomplete information.
The employer contended that the information relied upon by the Union in its submission to the Court at the original hearing was inaccurate in respect of the rates of pay, shift allowances and sick pay in the nursing homes quoted by the Union in support of its claims. The employer further submitted that the rates paid in similar employment in the public sector were equally misleading.
The employer also provided the Court with information concerning its economic and commercial circumstances which, it was contended, are such as to preclude it from meeting the terms of the Court’s recommendation.
For its part the Union accepted that the information which it provided at the original hearing was inaccurate in relation to sick pay and shift premium and they apologised to the Court for the errors involved. They pointed out that in its recommendation the Court had not adopted the erroneous submissions in formulating its recommendation. The Union provided the Court with statements from the employments upon which they relied, verifying the rates of pay and conditions of employment applicable to staff carrying out similar duties as those involved in the present claim. The Union also disputed the accuracy of the information provided by the employer in relation to rates of pay in the public sector.
Conclusions of the Court
The Court has examined the information with which it was provided in relation to pay and conditions of employment in comparable employments. The employer contended that the Court should not make a determination in the same terms as the recommendation because the information supplied by the Union at the original hearing was inaccurate. In support of this contention the employer submitted detailed rates of pay which it claimed are applicable to comparable categories of workers employed in the private sector and in the private sector nursing homes relied upon by the Union.
Having examined this information in its totality, the Court is not satisfied as to the accuracy of the information provided. In particular, the rates of pay submitted as applicable to analogous workers in the public sector bear no relation to the rates actually negotiated between the health sector trade unions and the health service employers in respect of those grades. The Court notes, however, that the employer contends that public sector rates are not a relevant comparator in the present case. Moreover, the rates which the employer asserts are paid by the private sector nursing homes cited by the Union are starter rates and are not reflective of the value placed by those employers on work similar to that at issue in this case. The employer did provide information regarding rates in certain other similar employments in the locality in which it is located. However this information was not supported by any verifying documentation or other evidence.
The staff associated with this claim are involved in the care of elderly and infirm people. It is essential that those engaged in this work be properly motivated and that the degree of dedication and commitment rightly expected of them should be reflected in their remuneration and other conditions under which they are employed. The employer contended that the improvements recommended by the Court are not warranted as the employees are adequately remunerated. The Court did not accept that contention at the original hearing and nothing which it has since heard has caused it to alter its opinion in that regard.
The employer also contended that it cannot afford the costs of implementing the recommendation. In support of this latter contention, detailed information was provided on the financial circumstances of the employment. This information indicates that the financial difficulties referred to by the employer relate in the main to a debt service obligation to a bank which appear to be part of the start-up costs of the business. Were it not for this liability the business would be operating at a profit.
Whilst this level of indebtedness is a matter which must be taken into account, it is not a basis upon which the employee’s claims should be totally rejected. In making its original recommendations, the Court sought to strike a balance between what it regarded as the reasonable aspirations of the employees, as represented by their Union, and the financial and commercial circumstances of the employment as represented to the Court by the employer. Having had regard to these and all other considerations, the Court formulated its recommendations at what it regarded as the lower end of the scale of what it a reasonable level of remuneration for the work involved.
On its own admission, the Court accepts that the information provided by the Union in relation to shift pay in other employments was not accurate. This is reflected in the determination which follows. Certain information regarding the sick pay entitlements submitted by the Union was also erroneous. However, that information did not influence the Court in formulating its recommendation.
For the reasons set out above, the Court is satisfied that it is appropriate to issue a determination in this case.
Determination
Pay.
The Court is satisfied that the rates of pay of those associated with this claim are out of line with appropriate standards and should be increased. The basic rate of pay should be increased to €9.25 with effect from the date of the original recommendation, namely 17th August 2004.In accordance with the original recommendation that rate should be further increased by 1.5 % from 1st October, 2004,and by a further1.5%on 1st April, 2005.Future increases should have regard to national agreements.
Introduction of a Sick Pay Scheme.
The Court determines that the Company introduce a sick pay scheme providing for four weeks' sick leave per year at full pay less social welfare. All sick leave should be covered by a medical certificate. The scheme should apply to all employees who have completed their probationary period. The scheme should not operate in respect of the first 3 days of any illness.
Night Allowance / Sunday Allowance
The Court determines that a night allowance equal to 25% of basic pay for the hours involved be introduced. Where staff work on Sunday as part of their normal roster they should receive an allowance equal to 50% of their basic pay for the hours worked.
Overtime.
Where overtime is worked, in excess of normal full-time hours, payment should be at time and one half for the first four hours and double time thereafter. Where overtime is worked on Sunday (as distinct from Sunday working as part of a rostered shift) double time should apply.
Equal Treatment and Other Issues.
The Company should put in place policies on equal treatment, harassment and intimidation in the workplace. The Union should be permitted to make submissions on the content of such policies and its views should be taken into account.
Grievance and Disciplinary Procedures.
The Court notes that the Company is prepared to concede the Union's claims for a revision of the grievance and disciplinary procedure to reflect the provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).
The current procedure should be redrafted to incorporate the changes agreed, including provision for trade union representation in processing individual issues through the procedure.
Implementation.
The adjustments provided for herein should be implemented with retrospective effect to the date provided for in the original recommendation. Such implementation should be effectuated within one month of the date of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
21st April, 2005______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.