FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION INMO PNA IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. 4 issues relating to Lcr19769
BACKGROUND:
2. The issues before the Court concerns Labour Court Recommendation No.19769 and the introduction of a Rule book by the Health Service Executive (HSE). In April, 2010 the Court issued a Recommendation dealing with five outstanding issues in relation to the Rule Book Management wished to introduce. A number of meetings were held between the parties to discuss the implementation of the Court's Recommendation but they were unable to agree on four of the five issues. The issues that remain outstanding are; (i) Method of application of sick pay scheme to fixed-term employees (ii) Accrual of annual leave during sick leave (iii) Accrual of annual leave in respect of hours worked in excess of contracted hours (iv) Entitlement in respect to public holidays during sick leave.
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 could not be reached, the dispute was referred to the Labour Court on the 10th January 2011, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 21st April, 2011.
UNION'S ARGUMENTS:
3. 1 In relation to the accrual of annual leave during sick leave, it is the Unions position that the provisions of Circular 27/03 from the Department of Finance should be adopted. This arrangement must apply from the date on which conditions of employment were altered.
2 In relation to the accrual of annual leave in respect of hours worked in excess of contracted hours, it is the Unions position that the application of the arrangements set out in the Department of Finance Circular must be backdated to 2006.
3 Fixed-term workers have to be treated in accordance with their comparative full-time worker in order to ensure that they are not unfavourably treated. The HSE has worsened the conditions of fixed-term employees by incorrectly imposing its version of a pro-rata application in respect of the sick pay entitlements provided for in Circular 10/71.
4 Health Service workers contract of employment refer to Circular 10/71 as the employing authority, it is clear that sick leave is recorded as sick leave and public holidays falling during that period cannot be recorded as anything other than sick leave. The worker must have a day off in lieu at another time.
MANGEMENT'S ARGUMENTS:
4. 1 Management have been prepared to go beyond the provisions of the Department of Finance Circular 27/03 in relation to the accrual of annual leave during sick leave but propose that this arrangement should apply from April, 2010.
2 In relation to the accrual of annual leave in respect of hours worked in excess of contracted hours, Management have been prepared to go beyond the provisions of the Department of Finance Circular with an implementation date of April, 2010.
3 The pro-rata arrangement in relation to the application of the sick pay scheme to fixed-term workers, which currently applies in the HSE, complies with the terms of the Protection of Employees (Fixed Term Work) Act, 2003.
4 Management contends that the provisions relating to public holiday entitlements during sick leave as set out in the HSE Terms and Conditions document are fully compliant with its statutory obligations under the Organisation of Working Time Act, 1997 and subsequent case law.
RECOMMENDATION:
In the course of the hearing and in their submissions the parties referred to various statutory provisions and to what they regarded as the legal entitlements derived from these provisions. This matter is before the Court pursuant to the Industrial Relations Acts 1946 – 2004. The role of the Court in this referral is to set out its opinion on the merits of the dispute and the basis upon which it should be resolved having regard to principles of fairness and good practice. It is not the function of the Court to interpret and apply statutory provisions in relation to the issues raised in this referral.
Consequently, nothing in this recommendation should be construed as defining the legal rights or duties of the parties in respect to any of the issues in dispute.
Having considered the submissions of the parties the Court recommends as follows in relation o each of the Unions’ claims: -
- Accrual of Annual Leave during Sick Leave
The Court recommends that the effective date for the agreement reached between the parties on this issue should be 14th April 2010. The Court further recommends that the rights of individuals to pursue claims for accrual of annual leave during periods of unpaid sick leave should be acknowledged in terms similar to those provided to IMPACT by the Department of Finance in its letter of 7th April 2010.Accrual of Annual Leave in Respect of Hours Worked in Excess of Contracted Hours.
The Court recommends that the effective date for the agreement reached between the parties on this issue should be 14th April 2010.Application of Sick Leave to Fixed-Term employees
From a practical industrial relations perspective the arrangement for applying sick leave to fixed-term employees must reflect the entitlement of permanent employees which is measured over a four year period. It must also take account of the fact that a fixed-term employee may be employed for a period significantly less than four years.The Court recommends that the entitlement to sick leave should accrue on the basis of 10 weeks full pay and 10 weeks half pay per year of service, and proportionately less for an incomplete year, up to a maximum of 26 weeks full pay and 26 weeks half pay in a four year period.
Public Holidays during Sick Leave
It is noted that, historically, where a public holiday occurred at a time an employee was on sick leave they day was treated as part of the period of sick leave, although no compensatory arrangements were in place in respect of the public holiday. The HSE now wish to alter that arrangement in light of a decision of the Court which held that arrangements which supplanted an entitlement to the benefit of a Public Holiday, by paid sick leave on the day on which the holiday fell, was unlawful.It is generally accepted that in the case of annual leave where an employee is ill and cannot avail of the opportunity for rest and relaxation the period in question cannot be regarded as a holiday. A provision to that effect is now contained in the Organisation of Working Time Act 1997. While there is no corresponding express provision in the Act in relation to Public Holidays, in the Court's view there is considerable merit, from an industrial realtions perspective, in the argument that the same general principle should apply in the case of Public Holidays.
Accordingly, the Court recommends that the current established arrangements should continue to apply and where a public holiday arises during a continuous period of sick leave it should be regarded as part of that period.
Signed on behalf of the Labour Court
Kevin Duffy
18th May, 2011______________________
DNChairman
NOTE
Enquiries concerning this Recommendation should be addressed to David P Noonan, Court Secretary.