FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(2), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CUAIN CHAITRIONA NURSING HOME, CASTLEBAR (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION IRISH NURSES ORGANISATION DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Inability to pay Sustaining Progress and Towards 2016 increases.
BACKGROUND:
2. The Home is part of a Charity called Mercy Care Western Province Limited (the Company). It has been operated and managed by the Sisters of Mercy since 1995 and is a not-for-profit organisation. There are currently 35 employees in the Home. The Unions claim is for payment of the National Agreements - Sustaining Progress and Towards 2016 (SP and T16). The capacity of the Home increased from 24 to 30 beds in 2002/2003. Staff were informed in March, 2006, that payments due under SP and Benchmarking would not be paid. Management claimed an inability to pay. The dispute was referred to the Labour Relations Commission (LRC) and it was agreed that an Assessor would instigate an audit of the Company's accounts. The Assessor's report concluded that the Company could not reasonably claim an inability to pay the National Agreements.
The dispute was referred to the Labour Relations Commission and a conciliation conference took place. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 3rd June, 2008, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 9th February, 2010.
UNIONS' ARGUMENTS:
3. 1. The Assessor outlined in his report that the Company had the ability the National Agreements but, despite expecting the workers to continue to provide a high standard of service, it continues to refuse to pay monies owed since 2005.
COMPANY'S ARGUMENTS:
4. 1.The Assessor found that"expenditure is running ahead of income year on year"but, due to the fact that the Nursing Home shows no deficit or net liability, he did not find that the Home could claim inability to pay. He did not take into account the fact that each year funding was given by the Sisters of Mercy to ensure that the head go into the red as it had no other means of support.
RECOMMENDATION:
This dispute came before the Court for a binding recommendation pursuant to Clause 1.10 (ii) of the pay agreements associated with Sustaining Progress and Towards 2016. The employer is pleading inability to pay various increases falling due under these agreements during 2006 and 2007. An Assessor was appointed in accordance with the agreement to examine the economic, commercial and employment circumstances of the employer. In a report presented in December, 2007, the assessor concluded that the employer was in a position to pay.
The employer contends that the assessor's report should be rejected because he found that the viability of the business was dependent on a continuing subvention by the Order originally responsible for the Home. The employer contends that this subvention cannot and will not continue and the assessor has failed to take account of that fact in reaching his conclusions.
It is agreed between the parties that this matter is before the Court on the basis that it must recommend that the Unions' claim be conceded in its totality or not at all. The Court is also required by the terms of the agreement to give due weight to the conclusions of the assessor. The Court has examined the assessors report in detail. It is a comprehensive report compiled on the basis of information provided by the employer relating to the time at which the assessment was conducted. The Court is not convinced that the conclusions reached by the assessor are so erroneous that they ought to be rejected.
In these circumstances the Court believes that it must be guided by the findings of the assessor and concludes that the employer's claim of inability to pay has not been made out. Accordingly, and on the basis upon which this matter was referred to it, the Court must recommend that the Unions' claim be conceded.
Signed on behalf of the Labour Court
Kevin Duffy
4th March, 2010.______________________
CON.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.