FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE-SOUTH - AND - A WORKER (REPRESENTED BY IRISH NURSES' AND MIDWIVES' ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner r-082823-ir-09/JOC.
BACKGROUND:
2. The case concerns a claim in support of the immediate regularisation of a Staff Nurse who has been in an acting-up role since early 2006 to a part-time Clinical Nurse Manager 2 post in the Paediatric Cystic Fibrosis Department of Cork University Hospital. The HSE are in ongoing national discussions with the IMNO and other Unions regarding this issue and it was on the agenda at the recent National Joint Council meeting held on 12th September, 2011. It is the stated aim of the HSE to conclude a collective agreement to deal with those in long-term acting-up posts and the HSE South does not wish to pre-empt the outcome of those discussions.
The issue involves a claim by a Union. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 11th May, 2010, the Rights Commissioner issued his findings and Recommendation as follows:-
"FindingsHaving read and considered the extensive written and verbal submissions and along with the correspondence received from the respondent of the 6th April, 2010. I have come to the conclusion the dispute before the Rights Commissioner is of a collective nature. I further understand the issue has been referred to the Labour Relations Commission on behalf of a number of employees
.
RecommendationI have no jurisdiction to hear it."
On the 16th June, 2010 the Union appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 2nd December, 2011.
UNION'S ARGUMENTS:
3. 1. The regularisation of the Claimant's position would cost nothing as she is already in receipt of incremental credit. She merely wishes to remove the threat of being cast aside should the HSE decide to advertise her post externally.
2. The Claimant has contributed significantly to the development of the Paediatric Cystic Fibrosis service in Cork and she now wishes to "put downroots" in the post.
EMPLOYER'S ARGUMENTS:
4. 1. HSE South accepts the Recommendation of the Rights Commissioner. The moratorium as introduced by Government in March 2009 does not include an exemption for nursing grades.
2. HSE South is not in a position to enter into negotiations with Unions on issues that may have national implications such as the regularisation of staff in acting-up positions.
DECISION:
This is an appeal by the Union on behalf of a Worker employed as a Clinical Nurse Manager 2 of a Rights Commissioner’s Recommendation which found that he could not consider the claim as the issue had wider implications which had been referred to the Labour Relations Commission.
The claim before the Rights Commissioner concerned an application to HSE South to regularise the position of the Appellant who had been acting up in the role of Clinical Nurse Manager 2 for a period of four-and-a-half years.
HSE South rejected the claim citing the moratorium on recruitment and promotion in the public sector and stated that it was in national discussions with the INMO on the regularisation of long-term acting grades and was confident that the Appellant would be regularised in the grade within a period of six months.
The Court notes that an agreement on the regularisation of long-term acting grades was concluded in May 2011 between the HSE and IMPACT.
HSE South informed the Court that the agreed terms with IMPACT provided that regularisation did not involve a competitive recruitment process and stated that the Appellant’s name was included in the cohort for regularisation and that in the interim her acting role was secure.
The Court is satisfied that there is merit in the case advanced by the Union on behalf of the Appellant.In all the circumstances of this case the Court recommends that, consistent with the terms of Labour Court Recommendation No: 20184, consideration of this case before the Court should be deferred for a period of six months. If, in the interim, a national collective agreement is concluded, the case should be dealt with in accordance with that agreement. If no agreement is concluded in that period the Union's claim should be considered on its own merit.
The Recommendation of the Rights Commissioner is varied accordingly.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd December, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.