FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST JAMES'S HOSPITAL - AND - A WORKER (REPRESENTED BY MEDICAL LABORATORY SCIENTISTS ASSOCIATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Right's Commissioner's Recommendation R-036076-IR-05/GF.
BACKGROUND:
2. The Union's claim is for the upgrading from Senior Medical Scientist to Chief Medical Scientist for the worker who is currently employed in the Endocrinology Laboratory, Central Pathology Laboratory, in St. James's Hospital. The Report of the Expert Group on Medical Laboratory Technician / Technologists Grades (the Report) was published in February, 2001. Part of the Report recommended that within a Department :-
...a' core structure' consists of at least one Chief Medical Scientist and two Senior Medical Scientists plus basic grade staff and is a well established arrangement, the Expert Group accepts that it should apply to all clearly defined departments within pathology and laboratory medicine'
The Union claims that, following discussions between the parties, it was agreed by letter of 29th October, 2003, that "core structure" should be defined as follows:-
Within a Department employing 6 or more (w.t.e) medical scientist staff it is accepted that a position of Chief Medical Scientist may be created where such does not exist at present.
'For the first filling of Chief Medical Scientist in Existing Departments (with 6 or more medical scientist staff)
It has been agreed that where, it is recognised and accepted by management that an individual Senior Medical Scientist is currently in overall charge of a Department then such individual may be up-graded to Chief Medical Scientist without recourse to confined competition.
The main issue between the parties is whether the Endocrinology Laboratory is a clearly defined department within pathology and laboratory medicine, with the Union saying that it is but the Hospital disagreeing with the definition. The Union relied on clauses 44 and 48-52 of the Report in its arguments.
The dispute was referred to a Rights Commissioner and his Recommendation was as follows:-
"I have given the claim careful consideration and I must agree that the claim is still the subject of ongoing talks at national level between HSE and MLSA and other hospitals. They advise the hospital to refrain from reaching individual agreement with MLSA until certain proposals are available and dealt with. However, I don't believe the claimant should be made to wait forever. For the moment I do not favour the claim."
The Union appealed the Recommendation to the Court on the 14th of December, 2005, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 22nd of March, 2006.
UNION'S ARGUMENTS:
3. 1. The " core structure" as described in the Report at clause 44 exists in the Endocrinology Laboratory. The worker is in charge of the Laboratory and has been employed there since 1974.
2. The Revised Grading Structure of Departments within Laboratories complies with the Endocrinology Laboratory as per the letter of 29th of October, 2003, in that there are two Senior Medical Scientists and five Medical Scientists.
3.The Endocrinology Laboratories in the Mater Hospital, Dublin and the Midland Regional Hospital, Mullingar, have upgraded the Senior Medical Scientists in charge to Chief Medical Scientist in accordance with the Report.
HOSPITAL'S ARGUMENTS:
4. 1. The implementation of the Report saw significant improvements in payand promotional opportunities for Medical Scientists .
2. The Hospital rejects the Union's claim on three grounds:-
(1) the requirements of the Report are not met:-The worker is employed in the Biochemistry Department which already has a Chief Medical Scientist and meets the requirement of the Report.
(2) lack of funding:-As no national agreement exists for the establishment of an Endocrinology Department, no funding has been provided from the Department of Health and Children to fund the creation of a Chief Medical Scientist.
(3) HSE-EA letter of 11th of October, 2005:-The letter of 11th October, 2005, advised the Hospital not to make any concessions under clauses 49 to 52 - which are the specific clause under which the worker is making his claim - as they remain the subject of discussion between the Union and the HSE-EA.
DECISION:
This is an appeal against the Recommendation of a Rights Commissioner in what is, in effect, a claim for upgrading of an individual to the grade of Chief Medical Scientist. The claim is based on Report No 1 of the Medical Laboratory Service Review Group.
In accordance with the Recommendations of the Review Group an essential requirement for the upgrading claimed is that the Medical Scientist concerned be in charge of an existing department. At present, the discipline in which the claimant works, Endocrinology, is not designated as a separate department. On that basis the claimant cannot succeed in his claim and the Court must hold that the Rights Commissioner was correct.
It appears to the Court, however, that the reality of the Union's claim is that Endocrinology should be designated as a department within the Hospital. Paragraphs 50, 51 and 52 of the Report sets out the procedures which should be followed in processing a claim for the recognition of a separate department. The Court is of the view that a more appropriate means of progressing the Union's claim would be for it to utilise the procedure referred to at paragraph 52 of the Report. In the event of the discussions envisaged in that paragraph not producing an agreement, the matter should be referred to the Court for arbitrations in accordance with paragraph 52.
The Court further recommends that the parties agree an indicative time frame of three months for the completions of the discussions between the management and staff sides.
With this modification the Recommendation of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
3rd April, 2006______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.