FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ARD AOIBHINN SERVICES WEXFORD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - IRISH NURSES ORGANISATION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Full retrospection of Holiday Pay.
BACKGROUND:
2. Ard Aoibhinn Services is an organisation that provides services to people with intellectual disabilities in the Wexford region.The service is predominantly nurse-led and receives 90% of its funding from the Health Service Executive, with the remaining funding obtained from fundraising.
The inclusion of premium payments in pay during annual leave for Nurses in accordance with the terms of the Holidays (Employees) Act 1973 was introduced following agreement between the Unions and Health Service Employers in 1975.
In June 2006, the INO became aware that their members in Ard Aoibhinn Services were not, nor ever had been, in receipt of Holiday Premium Payments. The Union lodged a claim for the payment of these premium payments with full retrospection to each member in line with their individual service history. Following correspondence with Management Holiday Premium for the year 2005 were paid in December 2006.
A claim for retrospection was subsequently lodged with 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 15th August, 2007, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 30th October, 2007.
UNION'S ARGUMENTS:
3. 1.The inclusion of Holiday Premium Payments in pay during annual leave for Nurses was introduced in 1975. The Management of Ard Aoibhinn Services were in breach of this agreement until November, 2006.
2. Management of Ard Aoibhinn Services haveagreed to pay to Holiday Premium Payments as of December 2006 going forward. This does not compensate the Union members for losses incurred by them for each year of service up to this point.
3.Nurses in Ard Aoibhinn Services were, and continue to be, financially disadvantaged vis-a-vis their HSE colleagues, in that Management did not adhere to the National Agreement on this matter.
MANAGEMENT'S ARGUMENTS:
4. 1. Ard Aoibhinn Services is a relatively small organisation by Intellectual Disability Sector standards. It is 90% reliant on HSE funding to provide a comprehensive service to its service-users on a limited budget.
2. If Management was to meet the demand for retrospective payment from the INO, this payment would have to be sourced from the existing budget and would result in a direct impact on the service, as money would need to be re-directed from services to meet this payment.
3. Management does not oppose this claim and have stated that if funds existed it would endeavour to pay the retrospective claim.
RECOMMENDATION:
The matter before the Court relates to the Union’s claim for retrospection of Holiday Premium Payments to Nurses working in the Service back to the date of the commencement of their employment with the Service.
In June 2006, it was discovered that Nurses were incorrectly paid when on annual leave as they were not in receipt of Holiday Premium Payments, which should have been paid in accordance with Department of Health Circular issued on 19th November 1975. The Centre set about rectifying the situation and instigated payment of the Holiday Premium Payments to the affected staff members as of December 2006. However, it stated that due to financial constraints the Centre was not in a position to backdate payments and sought to recover the costs of same from the HSE.
However, as no funding for the back-payments was forthcoming from the HSE, the Union referred the claim to the Court.
Having considered all aspects of this claim, the Court recommends that retrospection of unpaid Holiday Premium Payments should be paid for a period of six years and consequently recommends that any unpaid payments due since January 2001 should be paid to the Claimants involved in this claim.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st November, 2007______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.