FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ARAS GHOATH DOBHAIR (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH NURSES AND MIDWIVES' ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation R-040994-Ir-06/POB
BACKGROUND:
2. The worker is employed by Coiste Curm Prainne Gaoth Dobhair trading as Aras Gaoth Dobhair (the Company) which is a voluntary care group established 12 years ago. The Company opened a nursing home in 2004 which is 50% funded by the HSE. The worker commenced as a Nursing Team Leader in July, 2004, on a salary of €37,500. In November, 2005, the worker asked for a higher rate of pay. In January, 2006, the Union made a claim on her behalf for pay and conditions similar to nursing staff employed by the HSE. The case was referred to a Rights Commissioner who recommended as follows:
The worker appealed her case to the Labour Court in April, 2007, but it was decided to defer the hearing as a group claim by SIPTU was also the subject of a Labour Court hearing covering the same subject (LCR19553). The Court did not find in favour of the application of HSE terms and conditions though it made a recommendation in regard to premium pay, sick pay and a pension scheme. The worker then proceeded with her appeal of her individual case to the Labour Court again and a hearing took place on the 26th November, 2010, in Donegal town.
UNION'S ARGUMENTS:
3. 1. The Company is not a private nursing home as claimed as it continues to have a specific relationship with the HSE akin to that of Nazareth House Services in Sligo (details supplied to the Court).
2. The services at the Company continue to contract the vast majority of their patients from the HSE
COMPANY'S ARGUMENTS:
4. 1. The home is a private not-for-profit nursing home and is registered as such with the HSE. Therefore, a claim for parity with terms and conditions with HSE is not reasonable.
2. The worker negotiated a salary of €37,500 (inclusive of a shift allowance) before she commenced employment and her terms and conditions of employment reflected this. The Labour Court has already ruled against a similar group claim (LCR19553). Concession of the worker's claim would have a knock-of effect with all other staff.
DECISION:
The matter before the Court concerns an appeal by the INMO on behalf of the worker against a Rights Commissioner’s Recommendation which held against her claim for parity of pay and terms and conditions of employment with staff nurses in the HSE.
The Union submitted that the Appellant is employed as a staff nurse in an organisation that has a similar or identical relationship with the HSE as Nazareth House in Sligo where the Court has previously recommended that HSE terms and conditions of employment should apply to persons employed in that service.
To substantiate its claim, the Union stated that the nursing home has a service level agreement with the HSE, it avails of HSE-assisted funding for unit development, has HSE nominees on the Board and the Director of Nursing is seconded from the HSE.
Management, on the other hand, stated that the nursing home is privately run, on a not-for-profit basis, set up by a voluntary care group, with a special focus on providing services for native Irish speaking patients. It said that in terms of financial activities it is dependent upon beds being contracted on a named-patient basis by the HSE and by private patients.
Management submitted that in the circumstances it was not appropriate to pay HSE pay and terms and conditions of employment, however, it contended that its terms were in excess of similar private nursing homes in the region. The Union did not dispute the latter contention. Management clarified for the Court that the Appellant’s salary included a premium payment of 10% for working unsocial hours.
The Court in Recommendation No: 19553 concerning a similar claim for non-nursing grades in the same nursing home, represented by SIPTU, did not recommend in favour of concession of the claim for the application of HSE rates of pay and terms and conditions of employment for those grades, however, it did recommend improvements to certain conditions of employment, namely premium pay, sick pay and pensions.
Having considered the oral and written submissions of the parties in this case, the Court notes that nothing has changed to alter the status of the nursing home and consequently makes a similar Recommendation in the case of the Appellant concerned with this appeal:
Premium Pay:
The Court recommends that the existing premium payment of 10% should be increased to 20% with immediate effect.
Sick Pay:
The Court recommends the introduction of a sick pay scheme providing four weeks’ sick pay benefit per year less social welfare for those employees who have completed their probationary periods. All sick leave to be covered by a medical certificate with no payment for the first three days of illness.
Pension Scheme:
The Court recommends that the employer should introduce a defined contribution pension scheme with a contribution of 4% of salary payable by the employer and a matching 4% payable by the employee for those wishing to be members of the scheme.
Accordingly, the Court varies the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th December, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.