FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HEALTH SERVICE EXECUTIVE - AND - APPROX. 4800 DOCTORS (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. European Working Time Directive
BACKGROUND:
2. The issues before the Court relate to the requirement for the Health Service Executive to comply with the provisions of the European Working Time Directive with regard to Non-Consultant Hospital Doctors (NCHD). Following extensive negotiations between the parties, three outstanding issues remained; core working day hours, the principles of Rostering and On Call Off Site conditions.
The dispute could not be resolved at local level and was the subject of extensive discussions under the auspices of the Labour Relations Commission and a High Court Settlement. As agreement could not be reached and as provided for in the High Court settlement, the dispute was referred to the Labour Court on 25th May, 2009 in accordance with Section 26(1) of the Industrial relations Act, 1990. A Labour Court hearing took place on the 10th June, 2009.
UNION'S ARGUMENTS:
3. 1 Currently NCHD's are contracted to work a core 39 hour week of 9am to 5pm Monday to Thursday and 9am to 4pm on Friday. The IMO is agreeable to extend the working day to 8am to 8pm on Monday to Friday in line with Consultants contracts. The core 39 hours should be delivered within the 8am to 8pm day in order to preserve training opportunities. The IMO are also seeking the introduction of 10 training hours per week remunerated in full but excluded from working time calculations.
2 Rostering arrangements should provide that training can be delivered satisfactorily, provide for a safe level of medical care, allow for sufficient handover time and meet the requirements of the European Working Time Directive. Rosters must take account of a number of issues including the maximum number of NCHDs on leave at any one time. The minimum shift length should be 8 hours on weekdays and 5 hours on weekends and a maximum of 4 consecutive night shifts. A maximum of 4 weekends working over a 13 week period and days off should be rostered together.
3 Time spent off site but on call should not count as working time for working time legislation calculation purposes only. However, as provided for in current agreements, every hour spent on call off site must be remunerated.
COMPANY'S ARGUMENTS:
4. 1 Given the provisions of the EWTD, there is a requirement for NCHDs to engage in 5/7 working pattern to maintain 24/7 hospital services. A core working day of 7am to 10pm on Monday to Friday and 8am to 9pm on weekends is required. A minimum shift length of 4 hours during weekdays and between 4 to 6 hours at weekends is necessary to allow for flexibility in meeting service needs.
2 The number of Saturdays or Sundays that the NCHD may be rostered to work during a 6 month period is to be determined by 5/7 working and will vary depending on speciality and other factors.
3 The proportion of total working hours to be worked as part of the core working cannot be determined until 5/7 working or otherwise is agreed and the length of the core working day agreed.
RECOMMENDATION:
The matter before the Court concerns the HSE’s requirement to comply with the provisions of the European Working Time Directive for Non-Consultant Hospital Doctors (NCHDs). The issues before the Court are those items still outstanding following negotiations at the Labour Relations Commission as a result of a High Court Settlement Agreement. The Settlement Agreement between the two-parties followed five years of negotiations on the contractual arrangements applying to NCHDs and provides for a two-phase approach to deal with (i) negotiations on complying with the European Working Time Directive in terms of work patterns, rotas, rosters and on-call arrangements, and (ii) all other NCHD contractual issues. This hearing before the Court deals with phase one issues only.
The Court notes that the Settlement Agreement provides for the parties to be bound by the outcome of this Labour Court Recommendation and the parties further agreed and confirmed at the hearing that they would be bound by the Recommendation of the Court.
Having considered the position of both parties the Court recommends as follows:
The Requirement for NCHDs to Engage in 5/7 Working.
The Court notes that Clause 30.4 of Towards 2016 provides for a change to existing work patterns within the health sector to meet the need to maximise usage of facilities and delivery of services outside traditional patterns. Circular 003/2009 outlines details of the agreement reached with the health service trade unions to provide an extended working day/week.
The Court accepts the HSE’s requirement to provide hospital services in a structured way 7 days per week, 24 hours per day and accordingly recommends that NCHDs should undertake to operate 5/7 day working with effect from 1st July 2009.
The Length of the Core Working Day
The HSE requires the core working hours per day to run from 7.00am to 10.00pm Monday to Friday and 8.00am to 9.00pm at weekends whereas the IMO are agreeable to extend the core working hours to run from 8.00am to 8.00pm Monday to Friday.
Having considered the position the Court recommends that the core working hours should run from 8.00am to 9.00pm Monday to Friday and from 8.00am to 7.00pm at weekends.
The Minimum Length of Shift
Having considered the position of both parties the Court recommends that the minimum length of shift per day should be 6 hours Monday to Friday and the minimum length of shift at weekends should be 5 hours.
The Maximum Number of Weekends Rostered During the Reference Period
The IMO sought to limit the number of weekends rostered. The HSE held that the maximum number of weekends rostered within a 6-month reference period will depend on 5/7 working, will vary between hospitals and will depend on the speciality and other factors within hospitals.
However, it gave an assurance that every effort would be made to limit the number of weekends rostered in so far as that is possible, while taking account of the needs of the service.
The Court recognises the assurances given by Management that the number of weekends rostered will be kept to a minimum and further recognises that the Rostering Committees will be charged with overseeing the fair implementation of the assurances given. On that basis, the Court recommends that the IMO should accept new rosters scheduled in accordance with the parameters of this Recommendation.
The Proportion of Total Working Hours That Should Be Worked As Part of the Core Working Day.
In line with the Court’s Recommendations above, the Court recommends that the total daily working hours should not be less than 6 hours (weekdays)/5 hours (weekends) and not more than 13 hours (weekdays)/11 hours (weekends).
Conclusion
The Court notes that there is general agreement between the parties on the issue of “on-call off-site”, however, the Union submitted a number of claims of a cost-increasing nature concerning the matter. The Court is of the view that as these have a cost-increasing element attached to the claims that they should be dealt with in phase two of the negotiations.
The Court recommends that new rostered working arrangements should be implemented with effect from 1st July 2009.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th June, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.