FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HEALTH SERVICE EXECUTIVE - MID WEST AREA - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION PSYCHIATRIC NURSES ASSOCIATION DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Conversion to upgrade
BACKGROUND:
2. An agreement brokered under the auspices of the Labour Relations Commission recommended the transfer and discharge of a number of patients from St. Joseph's Hospital in Limerick to Community residences in Limerick in 2003. The agreement, between the Health Service Executive (HSE) and the Unions, also allowed for confined competitions to take place, which resulted in a number of long-serving nurses in an acting-up position to be promoted. The agreement also stated that future vacancies at Clinical Nurse Manager Level 1 (CNMI) and Clinical Nurse Manager Level 2 (CNMII) would be filled by public open competitions. The HSE advertised the positions of CNMI and CNMII in 2005.
- The Unions objected and contend that they agreed to the filling of future vacancies by open competition on the basis that every effort would be made to maintain a current panel in existence at all times and that a confined competition in respect of CNMI and CNMII be organised to accommodate staff in long term acting-up positions i.e. that they would be eligible to participate in the confined competition for the respective grades. The Unions are now seeking a confined competition to accommodate their members who are party to this claim.
- The HSE rejects the claim on the basis that an agreement was reached and that it proceeded to advertise vacant promotional posts in accordance with this agreement. It contends that the Unions are now trying to re-negotiate this agreement and block promotion on merit. This is not possible nor acceptable to Management.
- 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 17th November, 2005, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 19th April, 2006.
- 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 17th November, 2005, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 19th April, 2006.
UNION'S ARGUMENTS:
3. 1. Management accepted the principle of a further conversion process at the Labour Relations Commission in October, 2005, when it offered to fill four posts by confined competition. Management cannot justify the non-filling of these posts on a number of counts: A formal agreement from October, 2003, Labour Court Recommendation 16330, which led to the calling off of the Nurses strike in 1999. It states "vacant Management Posts where Nurses or Midwives are "Acting up" to be filled as soon as possible".
2. It is the Unions' claim that all Actors that were in substantive posts on the 1st of January, 2005, and who currently remain in post should be converted to permanency in the post they fill currently, by way of confined competition in accordance with the following: Breaking of a formal agreement by Management, Labour Court reference to filling Acting Posts "as soon as possible", and the agreement with IMPACT Trade Union. It is also the Union's claim that the Court direct Management to abide by undertakings given under the auspices of the Labour Relations Commission in 2003 i.e. " to maintain a current panel in existence at all times", this will ensure that vacancies can be filled as they arise at Clinical Nurse Manager Level going forward.
HEALTH SERVICE EXECUTIVE'S ARGUMENTS:
4. 1. The HSE is not in a position to revert to practices of promoting staff on the basis of seniority which was eliminated from the Psychiatric Nursing Service as a result of protracted discussion and agreement with the Nursing Unions nationally since the 1980s. It will not condone the practice of converting staff to promotional positions as this would be clearly discriminatory against a large number of staff.
2. The significant delay which has occurred as a result of the approved legitimate recruitment process being obstructed by the Unions has regrettably raised expectations in some quarters regarding some variation of promotion by seniority being re-established. These matters are of great concern to the HSE. The agreement reached on this "once-off" 2003 arrangement in respect of an accumulated number of vacant promotional outlets was clearly understood and accepted by both Management and Nursing Unions at the time, as a full and final settlement of the Human Resources issues arising from the relocation of services.It is not agreeable to a further confined competition at this stage.
RECOMMENDATION:
The Court has considered the oral and written submissions made to it by the parties. In all of the circumstances outlined, the Court recommends that:-
- (i) One more competition, confined to those in acting positions, be held. The result of this competition should be that 3 acting CNM I post holders and 3 acting CNM II post holders would be converted to permanent post holders.
(ii) All future vacancies at CNM I and CNM II grades should be filled by public open competition. It is the view of the Court that the HSE has a responsibility in ensuring that a current panel is maintained in existence at all times.
Signed on behalf of the Labour Court
Raymond McGee
10th May 2006______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.