LCR18763

• 
  UNIONS' ARGUMENTS:
  
  3. 1. The claims represent long-standing grievances for Nurses/Midwives. The employer has never, in relation to the majority of the claims, engaged in any serious attempt to negotiate a mutually acceptable agreement and instead has relied on third parties to deal with the issues.
  
  Claim (a)- Social Care workers received a pay increase of up to 27% in April, 2001, in the context of the introduction of professionalism. It is grossly unfair to suggest that Nurses/Midwives are less professional than Social Care workers.
  
  Claim (b)- It is 26 years since the Labour Court recognised the merit of the claim for a reduced working week for Nurses. The merit of the claim today is as strong as it was then. A reduction in the physical and mental pressures experienced by Nurses/Midwives could actually see a return to full (35) working hours for many who now work reduced hours.
  
  Claim (c)- Nurses/Midwives are undervalued in terms of qualification requirements to enter the professions. Management has never provided for a rational explanation for the vastly different rate of pay and treatment provided to therapeutic grades vis-a-vis Nurses/Midwives
  
  Claim (d)- There is no doubt about the additional cost of living in Dublin as against the rest of the Country. A recent survey carried out for the INO indicates house prices in Dublin being €120,000 more than outside of Dublin. Goods and services are almost always more expensive in Dublin than outside of it.
  
  Claim (e)- No other officer grade in the Health Service has a requirement for a 4-shift rota / 12 hour shift. Shift workers outside of the Health Service receive a premium of 33.3% for working such hours. Premium paid to Nurses/Midwives on Saturdays, i.e. time plus €14.23 per day is a particular problem.
  
  Claim (f)- The level of preceptorship involved for nursing across the board is increasing substantially. It will be difficult to convince nurses to take on this role given their current pay status vis-a-vis Social Care workers.
  
  Claim (g)- The Unions are seeking a review of the situation and want to put in place a plan where 40% of ward-based staff are in the clinical nurse specialist category.
  
  Claim (h)- The strike in 1999 was unique in that Nurses/Midwives kept hospitals and community services operating on an emergency basis for the entire nine days of the strike free of charge. This was not acknowledged by management which made deductions for the nine days.
  
  HSE's ARGUMENTS:
  
  4. 1. All parties, including the two Unions, are bound by the terms of SP and have received pay increases under the agreement.
  
  Claim (a)- This claim was investigated and rejected by the Labour Court in LCR 17805. The estimated cost of the claim including retrospection amounts to €556m.
  
  Claim (b) -The claim was investigated and rejected by the Labour Court in LCR 17526. The Court took the view that the claim was previously considered by the Benchmarking Body.
  
  Claim (c) -The claim was previously examined by the Benchmarking Body. That Body's recommendation established absolute levels of pay, and severed all previous pay links between the benchmarked grades.
  
  Claim (d)- This claim was investigated in LCR 17526 and rejected. The Court noted that the Benchmarking Body considered the claim when reaching its conclusions.
  
  Claim (e)- The claim was also investigated in LCR 17526. Estimated cost of the claim would be approximately €95m.
  
  Claim (f) -Preceptorship is a significant part of the role and function of individual Nurses/Midwives. Concession of the claim would have wide-ranging implications.
  
  Claim (g)- Clinical Nurse Specialists (CNS) and Advanced Nurse Practitioners (ANP) are approved by the National Council for the Professional Development of Nursing and Midwifery. There have been 1,784 CNS and 31 ANP posts approved by the Council since these posts were recommended by the Report of the Commission on Nursing.
  
  Claim (h) -There is no provision in the pension schemes for contributions to be made in respect of periods for which no salary was made. They are defined contribution schemes.

Introduction.

In this referral the Court is asked to investigate a dispute between the INO and PNA and the Health Service Executive in relation to eight claims seeking improvements in the pay and conditions of employment of nurses and midwifes. The claims were lodged with the employer on 7th December 2005. The subject matter of some of these claims was previously investigated by the Court and recommended upon as individual issues.

The role of the Public Service Benchmarking Body established under the Programme for Prosperity and Fairness and its continuance under Sustaining Progress and latterly by the Public Service Pay Agreement associated with Towards 2016 is a central consideration in this case. Clause 19.6 of the Public Service Agreement associated with Sustaining Progress provides, in effect, that no cost increasing claims by trade unions or employers will be made or processed during the currency of the Agreement other than those provided for by the Agreement itself or those arising from benchmarking. A similar provision is contained at Clause 27.7 of the Towards 2016 Pay Agreement.

The employer submitted to the Court that the present claims contravene these provisions and on that basis alone should be rejected. The Unions contend that the Sustaining Progress Agreement had expired by the date on which these claims came to be considered by the Court. They say that they have not subscribed to Towards 2016 and are not bound by its terms. The Unions further submitted that the current claims were submitted to the Court under the terms of an agreement entitled A Framework for Dispute Resolution in the Health Service, concluded between the Health Service Executive Agency and the Health Service Trade Unions in May 2004. The Court notes, however, that this agreement provides that the parties thereto will adhere to relevant provisions of national agreements in relation to industrial peace and public service pay. The Court is satisfied that this comprehends a commitment to the terms of Public Service Pay Agreements associated with National Partnership Agreements.

Social Partnership Agreements have brought significant benefits to workers employers and to the economy overall. They continue to have the support of the great majority of workers, their tradeunions and employers.

They provide a fair mechanism within an agreed framework by which workers can obtain improvements in pay and conditions of employment. In the case of the public sector, recent agreements have provided arrangements, through benchmarking, by which further or special pay adjustments can be made to address disparity in pay levels by reference to appropriate internal and external comparators.

Against that background the Court has always supported such agreements and has consistently upheld their terms in its recommendations on matters to which they relate. The Court has maintained that approach in addressing the current claims. In that regard it would be neither desirable nor consistent with the terms of current or previous agreements for the Court to supplant the functions expressly and exclusively assigned to the Pubic Service Benchmarking Body.

The Claims

Having taken full account of the submissions made by the parties, including information received after the hearing, and having regard to the considerations referred to above, the Court recommends as follows in relation to each of the Unions’ claims: -

Claim for Parity with Childcare Workers

The Unions are claiming a 10.6% pay increases, retrospective to 2001, for the elimination of an alleged anomaly with the pay of Childcare Workers. That claim was previously before the Court in relation to nurses employed in the Intellectual Disability Sector. In Recommendation LCR17805 the Court accepted that the individuals then associated with the claim felt strongly that their position has been undermined following increases granted to childcare workers within the sector. The Court accordingly recommended that the issue be processed within the terms of an understanding reached by the parties at the LRC.

It would appear, however, that this Recommendation was not accepted by the Unions who are party to these claims. Nonetheless the Recommendation was brought to the attention of the Benchmarking Body and is expressly referred to in the terms of reference for the current exercise being undertaken by that Body. The claim now before the Court is, however, considerably broader in its scope and encompasses the totality of the nursing and midwifery grades. In the Court’s view such a claim could only be processed through Benchmarking.

In these circumstances Court does not recommend concession of this claim at this time.

Reduced Working Hours.

This claim is of long standing and is aimed at addressing what the Unions regard as a major anomaly in the working hours of Nurses and Midwifes relative to other professions in the sector. However it is clear that concession of the claim at this time would have profound consequences for both health care delivery and costs unless effective countervailing measures could be put in place. Accordingly the Court is of the view that this claim can only be realistically addressed in a broader context which takes account of other relevant factors. Chief amongst these considerations is the commitment of the parties to the delivery of the highest standard of patient care, which was made clear in the course of their presentations to the Court. Other factors include the provisions of Towards 2016 relating to public sector pay policy and change, flexibility and modernisation. Of relevance also are the negotiations currently underway, or in contemplation, between various groups and HSE management on improved efficiency and change.

It is in this perspective that the current claim should be considered. It is the Court’s view that a reduction in working hours may be achievable within a reasonable timeframe if all the implications which it would have for the duties, hours and work organisation of other grades and professions are identified and managed appropriately, so as to attain optimum standards of safe and cost effective staffing levels and work practices.

Against that background the Court recommends that the parties should jointly explore the possibility of initiating an appropriate process aimed at achieving major reorganisation of working arrangements and practices within the health service generally. Such an initiative should take account of and support existing development involving other groups. In the Court view, if such a programme of change could be successfully implemented, the efficiencies, cost savings and other benefits accruing may allow this claim to be processed within a reasonable timeframe to be agreed between the parties.

Claim for Parity with Therapeutic Grades.

Like the claim for parity with Child Care Grades this claim is seeking a general increase for all Nurses and Midwifes. As in the case of that claim, the Court is of the view that the only available mechanism by which this claim can be processed is through Benchmarking.

In these circumstances the Court does not recommend concession of the claim at this time.

Dublin Weighting Allowance.

This claim was considered by the Court in 2003 and was dealt with in Recommendation LCR17526. The Court does no accept that circumstances have so changed in the interim as to justify a revision of what was then recommended.

In these circumstances the Court does not recommend concession of this claim at this time.

Review of Premium Payments.

This claim was also the subject of an investigation by the Court in 2003 and is addressed in Recommendation LCR17526. The Court took the view that the Benchmarking Body had considered this claim in formulating its first report. The Court can see no basis upon which it could now revise its opinion in that regard.

In these circumstances the Court does not recommend concession of this claim at this time.

Introduction of a Preceptorship Allowance.

The Court notes that preceptorship is currently part of the role of individual Nurses and Midwifes. That role does not currently attract an allowance. Accordingly the current claim is cost increasing and cannot be regarded as a minor claim. It should, therefore be subsumed in the Benchmarking exercise.

In these circumstances the Court does not recommend concession of the claim.

Review of CNS and ANP Posts.

The Court accepts that the Unions’ request for a review of the nature proposed and for the purpose identified in its submission is not unreasonable and should be conceded.

Reckonability for Superannuation Purposes of Days Lost During 1999 Dispute.

The Court notes that a similar claim was conceded in respect of ASTI members in Agreed Report 4/2004 of the Conciliation Council for Teachers. The Court considers that a similar concession could reasonably be made in this case. Accordingly the Court recommends that on acceptance of this Recommendation by the parties arrangements should be put in place to have the time in question reckoned for pension purposes on the same terms as applied in the case of those covered by Agreed Report 4/2004.

Conclusion.

Having regard to the recommendations set out above the Court would urge the Unions which are party to this dispute to reconsider their position with regard to participation in the Benchmarking so as to have their claims examined through that process.





Signed on behalf of the Labour Court



Kevin Duffy
9th November, 2006______________________
CON/EWChairman



NOTE

Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.