FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE NORTHERN AREA - AND - A WORKER (REPRESENTED BY I.N.O.) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation IR19724/04/JC.
BACKGROUND:
2. The appeal concerns a worker who was registered as a General Nurse in 1990 and as a Sick Childrens Nurse in 1993. Following this she practised for a period of time and left the profession in 1995 returning to practice in February, 2002. Prior to exiting the profession in 1995 the claimant was paid on the Single Qualification Nurses Scale because at that time the Sick Childrens Nursing was not a recognised speciality which attracted the Dual Qualified Scale. In 1996 the "Blue Book" which contained the "Revised Proposals for Agreement on the Pay and Conditions of Nurses" under the Programme for Competitiveness and Work (PCW) set out the criteria for continued eligibility of nurses for the Dual Qualified Scale, i.e. the "retention on a red-circled basis and personal to those nurses who are paid on the Dual Qualified Scale on 1st October, 1996 and for those in appropriate post-graduate training on that date only". Pursuant to the 1999 national nurses dispute agreements were reached as part of the settlement terms of that dispute which included revised arrangements for eligibility to access the Dual Qualified Scale. These agreements provided for the first time that "where the nurse is qualified in one of the new areas i.e. Midwifery and Sick Childrens Nursing at 1st October, 1996 or in training at that date he/she may be paid on the dual qualified scale on a red-circled basis provided he/she does not qualify for payment of a location or qualification allowance. The 1999 agreement also provided that "Nurses appointed after 1st July1998 will not be paid on a dual qualified scale". The Union claims that this date was developed in the context of the agreements above referring to 1st October, 1996. It was designed to ensure that those who commenced training after that date would not be eligible for the dual qualified scale as the training was of 18 months in duration, i.e that anyone who registered a second qualification after the 1998 date would not qualify. The Union claims that the two dates are inextricably linked. It claimed the worker should be paid on the Dual Qualified Nurses pay scale with retrospection to February, 2002 in accordance with the 1999 Agreement.. Management rejected the claim. Various correspondence was exchanged between the parties and the Union claimed that a letter from the HSEA in 2002 interpreted the word "appointed" as intending to cover registration with An Bord Altranais and that as the claimant was registered with An Bord Altranais before the 1st July, 1998 she is eligible for payment on the Dual Qualified Scale. The Employer rejected the interpretation. The dispute was referred to a Rights Commissioner for investigation and recommendation . On the 15th February, 2005 the Rights Commissioner issued her recommendation as follows:
" ..............The fact that the claimant has two qualifications and that she was registered with An Bord Altranais before the 1st July, 1998 was agreed by the parties.
The issue in dispute is whether or not she is excluded from payment on the dual qualified scale because she commenced employment with the respondent after the 1st July, 1998.
I have examined the HSEA 2002 correspondence referred to by both parties and I find that it was aimed at clarifying the position of nurses in training for their second qualification on the 1st October, 1996 and who may not have been registered with An Bord Altranais by the 1st July, 1998. The HSEA 2002 correspondence confirms that nurses that were in training for their second qualification on the 1st October 1996 but who did not register with An Bord Altranais until after the 1st July, 1998 would be eligible for payment of the dual qualified scale. I do not find that the HSEA correspondence re-interpreted the word 'appointed' to mean that a nurse, with dual qualifications, who was not in training on the 1st October, 1996 and who was appointed after the 1st July, 1998 would qualify for payment on the dual qualified scale because he/she was registered with An Bord Altranais prior to the 1st July, 1998. While the claimant was registered with An Bord Altranais prior to the 1st July, 1998 she was not in training on the 1st October, 1996, and she was not appointed to her position until after 1st July, 1998.
On the basis of the evidence presented I recommend against the claimant's claim to be paid on the dual qualified scale with retrospection to February, 2002".
On the 1st March, 2005 the Union appealed the recommendation to the Labour Court.The Court heard the appeal on the 18th May, 2005.
UNION'S ARGUMENTS:
3. 1. The 1999 agreement clearly provides that nurses who were in possession of or in training for a qualification in Sick Childrens Nursing at that time have an entitlement to be paid the Dual Qualified Scale.
2. The claimant has been in possession of two nursing qualifications since 1993. Under the terms of settlement of the 1999 Nurses dispute the claimant's qualification in Sick Childrens Nursing fell eligible for payment under the Dual Qualified Scale. The subsequent HSEA guidelines indicate that no person appointed after the 1st July, 1998 may access the scale, they go on to clarify that appointment in this case refers to registration with An Bord Altranais, therefore, persons registered prior to that date such as the claimant who registered in 1993 have an entitlement to paid on the Dual Qualified Scale..
3. The revised position of the Employer as espoused in 2002 correspondence must be taken as the definitive position ; any other interpretation will allow employers continually reinterpret agreements to the detriment of individual claimants which is manifestly unfair.
EMPLOYER'S ARGUMENTS:
4. 1. The circumstances governing the payment of the Dual Qualified Scale to nurses were set out in the "Revised Proposals for Agreement on the Pay and Conditions of Nurses as provided for in the PCW in 1996 (The "Blue Book")). Between 1996 and 2000 the claimant was not employed in a nursing role and therefore did not access the Dual Qualified Scale as she did not meet the criteria as set out above.
2. In February 1999 the Labour Court extended payment of the Dual Qualified Scale to nurses holding post graduate qualifications in Midwifery and Sick Childrens Nursing. However, the criteria as set out in the "Blue Book" remained the same. (LCR 16083 refers). Therefore the claimant did not meet the criteria as she was not employed in a nursing role in 1996.
3. Department of Health and Children circular 112/99 clearly states that nurses appointed after 1st July, 1998 may not be paid on the Dual Qualified Scale regardless of their qualification. The claimant commenced employment with the Board after 1st July, 1998 and therefore is not eligible for payment on the Dual Qualified Scale.
4. By seeking to have the claimant appointed as a Dual Qualified Nurse, the Union is seeking to re-write a national agreement, to which it was a party and which has been in place since 1999.
DECISION:
The issue giving rise to this dispute concerns the interpretation of an agreement between the parties on the circumstances in which Nurses become entitled to payment of a Dual Qualification Allowance.
Extensive submissions and arguments were made by the parties in support of their respective positions on the point at issue. However, the matter is before the Court by way of an appeal against the recommendation of a Rights Commissioner in a case involving an individual. It would, therefore, be inappropriate to give a definitive interpretation of the agreement in this case. Furthermore, other unions who are signatory to the agreement, and who are not party to this dispute would be entitled to be heard, before the Court could give such an interpretation. Consequently, nothing in this decision should be construed as providing a final or definitive interpretation of the relevant agreement.
Having reviewed all the relevant material submitted by the parties the Court has concluded that the findings and recommendation of the Rights Commissioner are reasonable and ought to be upheld. Accordingly, the Court decides that the appeal be disallowed and the recommendation of the Rights Commissioner be affirmed.
Signed on behalf of the Labour Court
23rd May, 2005______________________
TODKevin Duffy
Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.