FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE DUBLIN SOUTH CITY MENTAL HEALTH SERVICES - AND - IMPACT PSYCHIATRIC NURSES ASSOCIATION (PNA) SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION (SIPTU) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Ill-Health Benefits and Preserved Pensions
BACKGROUND:
2. In 2006 the HSE notified St. Patrick's Hospital (the Hospital) of its intention to take over the element of the Dublin South City Mental Health Services (the Service) that was being run by the Hospital, including all the employees engaged in providing that Service. Following a decision by the HSE to terminate the contract with the Hospital, approximately 70 staff transferred from the Hospital to the HSE in January, 2009. The dispute relates to conditions involved in the transfer, namely, ill-health benefits and preserved pensions, with the Unions claiming that terms and conditions in the HSE are not as good as those in the Hospital. In relation to ill-health benefits the Unions are seeking to preserve the 2-year qualifying period that they enjoyed while employed by the Hospital. The qualifying period for these benefits in the HSE is 5 years for new entrants, and the HSE regards those transferring from the Hospital as new entrants. The HSE paid 75% of the actuarially calculated loss but the Unions are seeking 100% of the loss. If a worker who transfers then resigns with less than two years' service they are prohibited from preserving their pension benefits.
The dispute was referred to the Labour Relations Commission (LRC) and a conciliation conference took place. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 11th November, 2009, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 1st April, 2010.
UNIONS' ARGUMENTS:
3. 1. Members who transferred will not receive any benefit under the ill-health scheme if they become incapacitated before January, 2014, other than a short-service gratuity based on one month's salary for each year of service. If they become incapacitated whilst employed with the Hospital they would receive €32,000 per annum.
2. Similarly, because workers transferring to the HSE are regarded as new entrants, they are prohibited from preserving their benefits if they resign with less than two years' service.
EMPLOYER'S ARGUMENTS:
4. 1. Individuals had the option of remaining in employment with the Hospital and availing of the entitlements established under that scheme. Those that did transfer did so underthe European Communities (Protection of Employees Transfer of Undertakings) Regulations 2003.
2. The Employer has fulfilled its legal obligations under the 2003 Regulations. Employees' rights to the pension scheme did not transfer under those Regulations. Instead they became covered by the HSE Superannuation Scheme and were regarded as new entrants. In regard to ill-health benefits employees are required to complete 5 years' pensionable service to access these benefits.
RECOMMENDATION:
The issue before the Court concerns the impact on the Claimants’ Long Term Disability Scheme and preserved pension benefits following the transfer of services from St. Patrick’s Hospital to the HSE South City Mental Health Services in January, 2009. The Unions involved stated that the Claimants incurred a reduction in benefits with respect to these issues following the transfer.
Management, in an effort to address the issues, offered to pay compensation of 75% of the actuarially calculated loss per individual in the areas of Ill-Health, Death-in-Service and Pension. These sums were paid out to the Claimants at the date of the transfer to assist them to purchase private arrangements to bridge the gap between the old and the new Schemes where individual workers wished to avail of that opportunity and otherwise the sums paid were compensation for the loss.
Having considered the submissions of both sides, the Court recommends that the Unions should explore the possibility of finding access to long-term disability (income continuance) schemes which may be purchased by the Claimants to provide cover for those who will not have such cover for the period up to 5th January, 2014.
The Court recommends that in the event that when purchasing such a scheme an individual Claimant incurs an additional cost over and above the amount already paid under the “long term disability” loss, that actual additional cost should be borne by the HSE.
The Court does not find in favour of the claim for further compensation over and above that already paid by the HSE in respect of the different waiting periods under the different Pension Schemes.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th April, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.