FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ST PATRICK'S HOSPITAL / MARYMOUNT HOSPICE (REPRESENTED BY ST PATRICK'S HOSPITAL / MARYMOUNT HOSPICE) - AND - IRISH NURSES ORGAINISATION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Payment Of Annual Leave Premia
BACKGROUND:
2. The dispute before the Court concerns the calculation of holiday premium pay for employees of the Company. In 2005 a number of staff raised the issue of how their holiday premium pay was calculated. The Union and Company met to discuss the issue and a number of changes were agreed between the parties going forward. However, agreement could not be reached with regard to the Union's claim for retrospective holiday premium payments dating back to 1975. The Company reject the Union's claim and maintain that they calculated holiday premium pay in a way that conformed to the Department of Health Circular on the matter issued in 1975.
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 6th December, 2006 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 12th September, 2007.
UNION'S ARGUMENTS:
3. 1 The formula for calculating holiday premium pay is available in the Health Service Executive terms and conditions of employment. However the Company have not included public holiday premia or unsocial hour premia in calculating holiday premia. They have also used the incorrect formula in calculating same. This has resulted in an actual loss for the Union's members.
2 The error in calculating the holiday premium pay not only impacts on the salaries of the Union's members but also has implications for the pensionable remuneration of those that have left the service and that of those who may leave whilst the incorrect formula continues to be applied.
3 The Union have consistently sought that the employer make a realistic offer with regard to retrospection. It seeks to have the unsocial hours, time and one sixth, for holiday premium pay purposes be paid retrospectively to the date of its inception in 1999. It also seeks to have the public holiday premium for holiday premium pay purposes retrospectively applied to all members.
COMPANY'S ARGUMENTS:
4. 1 The Company's practice in calculating the holiday premium payment was well known to the Union and was not disputed until 2005. The Company's practice was in line with many other similar companies and represented normal practice. The original Department of Health circular does not specify the exact methodology for calculating holiday premium pay.
2 The Company cannot afford to pay retrospection. It has operated at a loss since incorporation in 2005. Also, it is impractical and even impossible to track all potential beneficiaries of retrospection.
3 The Company was informed that the Health Service Executive Employers Agency is in the process of devising a standardised formula for calculating holiday premium pay as part of a wider standardisation process. The Company will await the outcome of this process and will comply with the terms of any national agreement concerning holiday premium payments.
RECOMMENDATION:
The dispute before the Court concerns the calculation of premium pay for the purposes of holiday pay. The Court notes that in December 2005 an agreement was reached between the parties on the method for calculating the premia going forward, however, the Union claims that no agreement was reached on retrospective payments and submitted a claim on behalf of 44 “whole time equivalents”.
The Hospital maintained that it had paid holiday pay in line with Department of Health Circulars S100/29 and S100/102, was in line with normal practice and its method of calculating the premia was well known to the Union, who did not dispute it until 2005. It also stated that it could not afford to pay the retrospection sought.
The Union, for its part, stated that it was prepared to accept a realistic offer of compensation for the retrospection sought.
Having examined the detail of this case and considered the written and oral submissions of both parties the Court is of the view that the Company offer of a lump sum of €30,000 to be divided among the claimants is fair and reasonable in the circumstances. Therefore, the Court recommends that the offer should be reinstated and accepted in full and final settlement of this claim. In distributing the monies regard should be had to the claimant’s length of service and current working hours.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd October 2007______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.