FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE WEST - AND - IRISH NURSES & MIDWIVES ORGAINISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Incorporating Nursing Staff into the direct employment of the HSE.
BACKGROUND:
2. This dispute concerns a claim that four nurses, currently employed at the Áras R�náin Community Nursing Unit on the Aran Islands, should become direct employees of the HSE. This 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 29th July, 2009, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 14th April, 2010, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1.The advertisement for the posts was issued by the HSE; HSE staff interviewed applicants for the posts and the contracts of employment given to the successful applicants were on HSE-headed paper.The HSE arranged for the Workers to be employees of Áras R�náin so that it could circumvent its own embargo on recruitment.
2.The HSE arranged for the Workers to be employees of Áras R�náin so that the HSE could circumvent its own embargo on recruitment.
3.The HSE should now recognise the fact that these Workers are, and have always been, HSE employees.
HSE'S ARGUMENTS:
4. 1. The HSE has never been the employer of these Workers.
2. The HSE provides funding to the Workers' employer to provide a service.
3.The public sector recruitment embargo would not allow the HSE to take these Workers into direct employment.
RECOMMENDATION:
The issue before the Court concerns the Union’s claim on behalf of four nursing staff employed at Áras R�náin, Inishmore for full assimilation into the employment of HSE.
HSE denied that it was the employer of the claimants and maintained that An Comharchumann Forbartha Arann was the employer.
The Court notes that An Comharchumann was engaged as an agent to administer the employment of staff, to operate Áras R�náin delivery of service and fulfil certain functions and responsibilities within the complex. On recruitment the claimants were informed that they may be assimilated into HSE’s direct employment approximately one year after the opening of the complex.
On 11th January 2007, the claimants were informed by HSE West that the assimilation would take place as soon as practically possible. Due to the moratorium on recruitment in the public service, this did not take place.
The Union submitted that the claimants were unfairly treated and it pointed to the fact that two non-national nursing staff taken on at the complex in June 2006 are direct employees of HSE. The claimants are paid in accordance with HSE salaries, have incurred the same pay reductions as HSE staff, however, they have no pension scheme and no rights of transfer within HSE facilities.
Having considered all aspects of the oral and written submissions of both parties, the Court is satisfied that a commitment was given at the time of recruitment that the claimants would be fully assimilated into HSE and they accepted the positions on that basis. Therefore, the Court recommends that the HSE accepts its status as the employer of the claimants and accordingly recommends that they should be fully assimilated into HSE with retrospective effect back to January 2005 (for those who commenced in January 2004) and to February 2005 (for the remaining nurse who commenced in February 2004).
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th April, 2010______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.