FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HEALTH SERVICE EXECUTIVE - AND - IRISH NURSES AND MIDWIVES ORGANISATION/ PSYCHIATRIC NURSES ASSOCIATION/ SERVICES INDUSTRIAL PROFESSIONAL TRADE UNION DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Alleged breach of the Senior Staff Nurse Agreement.
BACKGROUND:
2. The issue before the Court is in relation to a claim by the Unions arising from an alleged breach of the Senior Staff Nurse Agreement by the HSE. The nursing unions, INMO, PNA and SIPTU are seeking the reinstatement of that agreement which was reached as part of the settlement of the national nurses' dispute in 1999.
In October 2009 Management received a number of queries from employers requesting clarification as to whether the filling of the post of Senior Staff Nurse was precluded under the Government moratorium on public sector recruitment introduced in March 2009. Clarification from the Department of Health & Children and Finance confirmed that the filling of all promotional post was precluded under the moratorium. Management clarified the position to the nursing unions on 18th November 2009.
The nursing unions rejected the position that the post of Senior Staff Nurse is precluded under the moratorium.
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 was not reached, the dispute was referred to the Labour Court on the 23rd June 2010 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 13th October 201.
UNION'S ARGUMENTS:
3. 1. The Union maintains that the Senior Staff Nurse was an integral part of the settlement of the national nurses' strike of 1999.
2. The Union contends that the Senior Staff Nurse is a unique grade in the public service. It is neither a long service increment or promotion but a creation designed specifically in the context of the national dispute. Its foundation lies in the need to recognise the contribution of long serving nurses and midwives in the workforce.
3. The Union maintains that among all other public service grades, staff nurses in the Senior Staff Nurse category are alone in having three distinct pay cuts applied to them.
MANAGEMENT'S ARGUMENTS:
4. 1. Management maintains that the post of Senior Staff Nurse was created as part of the settlement terms of the 1999 nurses' strike. The agreement stipulated that the post of Senior Staff Nurse'is not a long service increment'.
2.Management contends that inherent to the role of the Senior Staff Nurse is the integral role the post plays within the management structure of the unit. The post holder is available as a resource to support the traditional management structure at ward/unit level i.e. CNM1, CNM2 and the Senior Staff Nurse will very often take charge of a ward/unit in the evenings or at week ends.
3. Management maintains that the Government Moratoriumon recruitment and promotion precludes promotions within the Public Sector with some exemptions. Nursing grades are not one of the exempted grades derogated (HSE circular 15/2009).
RECOMMENDATION:
The Court has carefully considered the submissions of both parties in this case.
The Court is satisfied that the parties, when agreeing the creation of this post, intended that it would be unique in nature. It would appear it was a post created to recognise the contribution of staff nurses with long service who wished to remain in direct patient care rather than assume managerial roles. It was not intended that Staff Nurses would have automatic progression to the post. Nor was it intended that it would be a promotional post within the strict meaning of that term i.e. there is no need to wait for a vacancy to arise, there is no competition for the post and there is no competitive interview conducted amongst the applicants. The post therefore is a hybrid one that has characteristics of both types of post. On the one hand all staff nurses with 20 years service qualify for access to the post. On the other hand each staff nurse must apply for the post and agree to undertake certain duties that appear not to be significantly different to those undertaken by staff nurses on a day-to-day basis.
It is the Court’s view that the fact that movement into this post is contingent upon the completion of an application form has little significance in practice. All staff that applied for the post since its creation had their applications approved by the HSE as a matter of routine. The abolition of the ceiling on the number of Senior Staff Nurses within the system lends further credence to the contention that completing the application forms and committing to the associated conditions is a mere formality and of no great significance.
The Court therefore would not, for industrial relations purposes, normally consider this a promotional post but rather an additional recognition of long service that was subject to some formalities that were primarily designed to distinguish it from other long service payments.
Accordingly the Court is of the view that each successive cohort of staff nurses, on reaching 20 years service, could reasonably expect that the terms of the agreement would continue to apply to them also.
The Court notes that the HSE confirmed that it remains committed to the agreement and were it not for the moratorium in place at present would have processed and approved all applications made in November 2009 and subsequently. However the HSE stated that it was not permitted to do this because it has been instructed by the Department of Health that the post is regarded as a promotional post for the purposes of the Moratorium that was introduced by Government decision.
The interpretation of the Moratorium and what comes within its scope is not a matter for this Court. The Moratorium is a Government decision and it alone can clarify its intentions as to its scope and application.
In light of this Recommendation the parties might wish to approach the relevant Government Departments with a view to engaging further on this matter.
The Court so recommends
Signed on behalf of the Labour Court
Brendan Hayes
1st November, 2010______________________
Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.