FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FINGAL HOME CARE LIMITED - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Recommendation r-055564-ir-07/JC.
BACKGROUND:
2. The issue involves a claim by a Worker that she be paid sick pay. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 8th September, 2008, the Rights Commissioner issued his Recommendation, as follows:
"In all the circumstances I recommend that the respondent pay the claimant the sick pay to which she is entitled as per the existing Collective Agreement referred to above in respect of the periods of certified sick leave covered by the Union's claim."
On the 22nd September, 2008 the Employer appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 11th December, 2008.
EMPLOYER'S ARGUMENTS:
3. 1. While the organisation is a voluntary agency primarily funded by the HSE, it is not totally so funded and also relies on contributions from clients.
2. The Claimant was previously employed by Ballbriggan and the Swords Home Help Services where she did not receive such pay. These were subsumed into Fingal Home Care. The set-up pack given to new employees does not have any reference to sick pay nor should they have any expectation of it.
3. Any discussions concerning the granting of HSE terms and conditions of employment(including sick pay) to Home Help staff are still being finalised in the course of discussions between the HSE-Easten Area and Unions and have not been implemented.
4. A subsequent Rights Commissioner hearing concerning the same claim for another employee of Fingal Home Care Ltd was dismissed by a Rights Commissioner on 5th December 2008.
UNION'S ARGUMENTS:
4. 1. A national Agreement for Home Help was negotiated in 2000 which provided for sick pay on a pro-rata basis with full-time grades in the Service consisting of up to 12 weeks' full pay in a period of 12 months.
2. It was clarified by Ms Janet Hughes, Meditator, in 2005, that a collective agreement exists for the Health Service and voluntary bodies. This agreement encompasses sick pay.
3. An Assistant Director of the HSE acknowledged in 2006 that a collective agreement was finalised in 2000 regarding terms and conditions for Home Helps to have the same benefits as all other staff in the Health Service, including sick pay.
DECISION:
It is clearly a fact that the employer in this case, being 80-85% funded by the HSE, is a "voluntary body" encompassed in the draft Collective Agreement between employers and trade unions regarding Home Helps.
A purposive interpretation of the Agreement of 2000, as clarified by Ms Janet Hughes in 2005, can only lead to the conclusion that Home Helps should, on a pro rata basis, receive sick pay entitlements as per those existing in the Health Service.
It has been a consistent policy of this Court to extend HSE terms and conditions to agencies, services and bodies fully or largely funded by the HSE, particularly in circumstances where the work being performed is the same work performed by equivalent workers in the HSE.
The Court therefore, dismisses the appeal and affirms the Recommendation of the Rights Commissioner.
Signed on behalf of the Labour Court
Raymond McGee
9th January, 2009______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.