FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE (REPRESENTED BY HSE - EA) - AND - APPROX 100,000 WORKERS (REPRESENTED BY HEALTH SERVICE STAFF PANEL OF UNIONS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Method of application of sick pay scheme to Fixed Term Employees, accrual of Al during sick leave, entitlement of Public Holidays occurring during sick leave, payment of T+1/4 For Hrs worked after 8pm. Accrual of Al Of Hrs worked in excess of contracted Hrs
BACKGROUND:
2. The issue before the Court concerns a claim by the Unions that the Health Service Executive (HSE) produced a document regarding terms and conditions of employment, referred to as the Rule Book, without prior consultation between the parties. The Unions contend that this is a departure from the established practice. There is disagreement between the parties on five issues within the Rule Book. They are; (i) Method of application of sick pay scheme to fixed-term employees (ii) Accrual of annual leave during sick leave (iii) Accrual of annual leave in respect of hours worked in excess of contracted hours (iv) Payment of night duty premium(T+ ¼ )for hours worked after 8pm (v) Entitlement in respect to public holidays during sick leave. The HSE contends that the Rule Book is a compendium of national rules and conditions deriving from circulars, agreements and employment legislation.
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 could not be reached, the dispute was referred to the Labour Court on the 10th June 2009, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 6th April, 2010.
UNION'S ARGUMENTS:
3. 1 In accordance with Section 60 of the Health Act, 2004 any change to employees conditions should only occur following consultation with their representative groups. This did not occur here.
2 The Rule Book sets out the rules as interpreted by the HSE and ignores collective agreements and Department of Health Circulars from which contracted conditions are derived.
3 The HSE in refusing to withdraw the Rule Book pending full discussion and negotiations between the parties, breached the provisions of Towards 2016 and the Consultation Information Directive.
COMPANY'S ARGUMENTS:
4. 1 The HSE rejects the Unions claim that the terms and conditions within the Rule Book have been unilaterally imposed. The original Rule Book was circulated in 2006 and a revised version in May 2009.
2 The Unions are seeking to exploit local deviations from the national rules by claiming that these anomalies set national precedent.
3 Improvements in existing terms and conditions over and above what is set out in the Rule Book constitute new claims and as such run contrary to Towards 2016.
RECOMMENDATION:
This dispute arose from the decision of the HSE to produce a comprehensive manual covering conditions of employment applicable to its staff, referred to as the ‘Rule Book’. It is intended to incorporate and update agreed arrangements which applied in the former Health Boards. There is no disagreement between the parties on the majority of issues covered in the draft document but the parties have disagreed on how entitlements in respect to five items covered should be defined.
In respect of some of these items the disagreement relates to the construction of statutory rights. This dispute is before the Court under the Industrial Relations Acts 1946-2004. In consequence the Court’s role is to assist the parties in identifying an industrial relations solution to the issues in dispute. In this referral the Court cannot provide a definitive legal interpretation of the statutes in question and nothing in this Recommendation should be understood as purporting to define the legal rights or duties of the parties or of any individual under relevant legislation. Should the parties wish to obtain a legal determination of individual rights in respect of any of the matters in issue the appropriate course of action would be to process test cases under the relevant statutes.
It should be clearly understood that the recommendations which follow are without prejudice to the legal rights of the parties and those whom they represent and it should not be relied upon in any legal proceedings under employment rights legislation or otherwise.
Having considered the submissions of the parties the Court recommends as follows in respect to each of the issues in dispute: -
1. Method of application of sick pay scheme to fixed-term employees.
- The Court notes that there is considerable disagreement between the parties on how the sick pay entitlements of fixed-term employees should be defined having regard to the provisions of the Protection of Employees (Fixed-Term Work) Act 2003. The Court recommends that the arrangements in respect of fixed-term employees in place immediately before the introduction of the Rule Book should continue to apply until an agreed alternative arrangement is put in place.
2. Accrual of annual leave during sick leave
- The Court notes that Department of Finance Circular 27/03, issued on 30th September 2003, makes comprehensive provision in relation to the granting of sick leave in the broad public service. This Circular recites the fact that its content arose from an Arbitration Board finding and consequential negotiations with Civil Service Unions. While this Circular may not be strictly applicable to the parties to this dispute it nonetheless provides a definitive guidance on how similar sick-pay arrangements apply in the broad public service.
- The Court recommends that the provisions of this Circular, as it relates to the accrual of annual leave during sick leave, should be adopted by the parties and applied unless and until an alternative arrangement is agreed between the parties.
3. Accrual of annual leave in respect of hours worked in excess of contracted hours.
- This aspect of the dispute relates to the accrual of annual leave to part-time workers and those who are contracted to work less than normal working hours during a leave year.
- Department of Finance Circular 27/03 also covers this matter. The Court again recommends that the arrangements prescribed in that Circular be applied unless and until an alternative arrangement is agreed between the parties.
4. Payment of night duty premium (T+ ¼ ) for hours worked after 8pm.
- The Court recommends that the arrangement proposed in the Rule Book be accepted unless alternative arrangements are agreed between the parties or by any Public Sector Agreement
5. Entitlement in respect to Public Holidays during sick leave
- This aspect of the dispute arose from Determinations of the Court made under the Organisation of Working Time Act 1997. The import of those Determination is that where an employee is absent from work through illness at the time a public holiday occurs, and is contractually entitled to a day off with pay on that day under the terms of a sick pay scheme, he or she is entitled to be separately compensated for the Public Holiday. It follows that where a sick pay scheme provides that a day of illness, which coincides with a public holiday, is not covered under the scheme a different situation arises.
- In the present case the Court notes that the draft Rule Book provides, at page 14, that in future where an employee in absent on sick leave at the time a Public Holiday occurs he or she will receive a day's pay in respect of the Public Holiday rather then a days pay in respect of their sick leave entitlements. The effect of this provision, in practice, would be to interrupt the continuity of sick leave. However, in dealing with the sick pay scheme itself, on page 16 of the draft Rule Book, the terms of Circular 10/71 are adopted and in particular a provision to the effect that every day occurring within a continuous period of sick leave is to be reckoned for the purpose of offset against the employees total entitlement. These provisions are clearly incompatible.
- Furthermore, it is noted that the Rule Book provides that social welfare entitlements are deducted from sick pay. No explanation is provided as to how this provision would operate in practice where a continuous period of sick leave is interrupted so as to take account of a Public Holiday occurring during that period.
- In the circumstances the Court is not satisfied that the parties have given sufficient consideration to the detailed application of what is proposed and how it could operate within the parameters of the sick pay scheme as it is provided for in the relevant section of the Rule Book. The Court feels that this aspect of the dispute should be the subject of further discussion / negotiation between the parties. It recommends that the parties enter into such discussions without further delay.
- If final agreement is not reached on this matter within two months it may be referred back to the Court. In the interim existing arrangements should continue to apply.
Signed on behalf of the Labour Court
Kevin Duffy
13 April, 2010______________________
DNChairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.