LCR20232

FULL RECOMMENDATION

CD/11/695

RECOMMENDATIONNO.LCR20232

(CCc-110170-11)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990

PARTIES :

HSE - CERS

- AND -

SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Mr Shanahan

SUBJECT:
1. Introduction of the Terms S2.9.12,13 & 14 of the Public Service Agreement for Radiography Grades.

BACKGROUND:

2. The case before the Court concerns a dispute between the Employer and the Union on behalf of its members employed in Radiographer grades located in hospitals nationwide and relates to the introduction of proposed changes to the terms and conditions of employment of workers in these grades. The Employer contends that it has an obligation to ensure the provision of an efficient and effective service delivery whilst making best use of the resources available and has therefore proposed a number of changes to the terms and conditions of employment of the Radiographer grades in order to achieve this. The Union disputes the Employer's proposals and has proffered alternative proposals to the Employer. Agreement could not be reached between the parties and after a number of local level engagements the dispute was referred to the Labour Relations Commission where a Conciliation Conference was held. Following Conciliation a number of issues remained outstanding andthe dispute was referred to the Labour Court on the 14th November, 2011, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 14th December, 2011.

UNION'S ARGUMENTS:

3. 1. The proposals offered by the Employer are outside of the terms of the Public Service Agreement.

2. The Union contends that the Employer is proposing changes to existing terms and conditions surrounding pay and particularly to pay relating to the provision of on-call services.

3. The Union strongly opposes the Employer's proposal in relation to the cessation of the payment of previously agreed allowances.

EMPLOYER'S ARGUMENTS:

4. 1. The Public Service Agreement allows for the Employer to introduce necessary changes in order to ensure service delivery with the most effective use of available resources.

2. The Employer contends that the proposed changes are in keeping with the guidelines of the Public Service Agreement.

3. The Employer maintains that long standing agreements must be reviewed and adapted to reflect the current situation, as is the instant case.

RECOMMENDATION:

The issue before the Court was referred under Clause 1.24 of the Public Sector Agreement 2010 – 2014 (herein referred to as “PSA”) and concerns proposed changes to Radiographer grades’ terms and conditions of employment.

The HSE under the auspices of the PSA proposed to introduce an extended day service for radiography services in order to deliver services in a more efficient and appropriate manner whilst making the most advantageous use of the allocations given. The HSE’s proposals also included consequential changes for standardisation of remuneration and non-pay conditions across the system. The HSE recognises that the proposed changes will be significant and will impact considerably on staff.

The Union engaged in lengthy discussions on the proposals and submitted a proposal of its own, however it contended that the HSE’s proposals did not respect pre-existing agreements on pay related conditions of employment when on-call. Furthermore, it does not accept that the proposals are consistent with the terms of the PSA or that the latter provides for the removal of existing pay rates with a view to maintaining the same after hours’ service.

The Union referred to the different models of service provided by radiographers and the different levels of service provided by the various types/sizes of hospital. It stressed the need to ensure that a protocol is finalised to provide assistance to both radiography staff and local management in identifying the requirements for change and the mechanism/impact of same, including the necessary supports and clinical lead.

The Court notes that within the process of dialogue on this issue considerable progress was made to agree a protocol to facilitate the introduction of the extended day in various locations to take account of operational issues which may arise. However, a number of outstanding issues have been referred to the Court and both sides assured the Court that if these issues were resolved it would clear the way for the protocol to be finalised. Six issues were identified and agreed by both sides as the areas in dispute, (a) introduction of an extended day, (b) remuneration for out of hours attendance, (c) standardisation of working hours, (d) standardisation of time back arrangements and (e) elimination of the €1,800 allowance provided for in Circular 05/2006 for working 8am to 6pm and (f) rostering gaps between 5pm to 8pm Monday to Friday.

On that basis the Court, having carefully considered the submission of both sides makes the following Recommendations on the issues in dispute:-

(a)Extended Day

Clause 2.9.12 of the PSA provides for the introduction of an extended working day covering the period 8am – 8pm (same contracted hours but different scheduled attendance patterns) for all grades in service locations where it is identified to meet service requirements.

The Union recognises that the PSA provides for the introduction of an extended working day, however it challenged the criteria under which management seek to introduce it in radiography services.

The HSE proposes to introduce the extended day and proposed that all radiography staff will in future be required to have their contracted hours rostered between the hours of 8am and 8pm, Monday to Friday. It proposed a premium payment of T + 1/6^thfor hours worked between 6pm and 8pm. Furthermore, the HSE proposes to schedule the existing contracted hours in different attendance patterns. Hours of attendance will be averaged over a six week period, depending on the speciality of service and the location.

HSE proposes to implement extended day working from 1^stFebruary 2012.

The Court accepts that HSE have identified a service need requirement in radiography services and accordingly upholds its proposal to introduce an extended day, consistent with the terms of the PSA. The Court recommends that the proposed extended day terms should be accepted and implemented on a pilot basis initially from 1^stFebruary 2012, with the following amendment:-

The Court recommends that for those staff not in receipt of the allowance for contracted working hours (as per Circular 005/2006), premium payments of T+1/6^thshould be paid for all hours worked between 8am - 9am and between 5pm – 8pm.
- (b)Out of Hours Remuneration

The HSE proposes to change out of hours payment from a ‘sessional’ and ‘fee payment per case emergency model’ to an hourly rate of pay for radiography services provided outside of core hours to meet service demands, in line with that paid to Medical Laboratory Scientists. The existing payments vary depending on speciality of service and location and HSE wish to standardise the payments.

It proposes to pay a minimum of one hour’s pay at the new proposed rate and thereafter payment to be paid for time worked. The hourly rate proposed for Monday -Saturday from 12pm-8am is €47.80; Saturdays from 8am –12pm is €43.81 per hour; and Sundays 24 hours is €52.57 per hour.

The Union stated that the existing remuneration method for out of hours' attendance had been agreed; consequently the proposal to remove them and replace them with lesser terms is contrary to the provisions of Clause 2.8 of the PSA.

The Court recommends that the proposed hourly rates should replace the existing ‘sessional’ and ‘fee payment per case’ payments. Therefore the Court recommends that the introduction of the hourly rates as proposed by the HSE on condition that HSE replace the current stand by rates with the “on-call with stand-by” rates applicable to Theatre Nurses, in line with that which now applies to the Medical Laboratory Scientists.

(c)Standardised Hours of Work

Since December 2008 all radiographer staff are recruited to work a 35 hours per week; and on promotion they are required to move to a 35 hour week. The HSE told the Court that a very small number (approximately 50) are still working less than 35 hours per week. The HSE wish to standardise the working hours and proposes that all radiographers should now work 35 hours as part of the proposed extended day.

The Union disputed the HSE’s proposal and submitted that the small numbers of radiographers who currently work less than 35 hours per week should hold that provision on a personal to holder basis.

The Court recommends that radiographer staff who currently work less than 35 hours per week should maintain that provision on a personal to holder basis, until (and if) such time as they are entitled to be promoted.

(d)Standardised Time Back Arrangements

The HSE stated that where out of hours are worked in the radiography services it has been the practice to make payments for such out of hours’ work and also to provide paid time off in lieu. The HSE proposes to change that system. It committed to providing compensatory rest as required under the statutory requirements of EU Working Time Directive 93/104/EC and it proposes to limit such time off to occasions where paid-time back is accrued at weekends and public holidays. The HSE set out its proposals in detail in Appendix 5 of its submission to the Court.

The Union did not see merit in the proposed changes, it submitted that it would lead to pressure on radiographers to return to duty to work additional hours due to not being paid while on rest and held that it could act as a disincentive to staff to commit to the demands of on-call.

The Court does not uphold the HSE proposal to provide that a radiographer called out between Sunday to Thursday would have to make up the compensatory time off over the averaging period for contract hours under the extended day scheme. Otherwise the Court upholds the HSE proposals on time back arrangements, as outlined in its submission:-

(i)Compensatory Rest

Sunday to Thursday

Late calls that occur between 12am and 2am give rise to a ½ day’s paid compensatory rest the following Monday to Friday. Calls received between 2qm and 7am give rise to a full day’s paid compensatory rest.

(ii)Time-off-in-lieu (Paid):

The following scenarios will give rise to paid time off in the specified manner and will require changes to existing arrangements:

Friday night /Saturday morning (only)

Being on call from Friday night into Saturday morning would give rise to a ½ day off to be taken the following week or in line with the workflow of the Department and service needs. This is granted irrespective of call-out and is to be considered as paid time off.No additional time is accrued or banked for call-outs, late or otherwise.

Saturday night / Sunday morning & the night prior to a Public Holiday (only)

Being on call from Saturday night into Sunday morning or the night leading into a Public Holiday would give rise to a ½ day off to be taken the following week or in line with the workflow of the Department and service needs.This is granted irrespective of call-out and is to be considered as paid time off. No additional time is accrued or banked for call-outs,late or otherwise.

Saturday and Sunday:

Being on call for both a Friday (into Saturday am) and Saturday (into Sunday am) night would accrue a full day to be taken the following week or in line with the workflow of the Department and service needs. This is to be considered paid time-off. No additional time is accrued or banked for call-outs,late or otherwise.

(e)Elimination of Payment of €1,800

The HSE propose to eliminate the €1,800 allowance provided for in Circular 05/2006 for those radiographers employed in locations where changes were agreed in their contracted attendance patterns to allow the introduction of 8am – 6pm working. The payment was applied to approximately 40% or 450 radiographers.

The Union disputed the removal of an already agreed allowance in the context of HSE’s proposal to introduce an extended day.

In the context of this recommendation under (a)Extended Dayoutlined above, the Court does not recommend the removal of the allowance from those radiographers already in receipt of it.

(f)Rostering Gaps between 5pm to 8pm Monday to Friday

The HSE said that it is prepared to look at situations where gaps in rosters may arise between 5pm and 8pm, Monday to Friday, directly as a result of the introduction of the extended day. It stated that this is most likely to arise in smaller locations. The HSE propose to deal with this by allowing discretion to local management on how best to deploy their resources and if necessary the new proposed hourly rate of €37.55 should apply.

The Union rejected this proposal and sought the application of overtime rates.

The Court recommends that overtime rates at T+ ½ should apply to hours worked outside of the radiographers’ rostered hours within the extended day period, when required to fill in a rostering gap. Consistent with its previous recommendation on (a)Extended Dayabove, the Court is of the view that for those in receipt of the €1,800 allowance overtime in such circumstances may arise in the period 6pm to 8pm, and for those not in receipt of the allowance overtime may arise in the periods between 8am - 9am and between 5pm – 8pm.

Introduction on a Pilot Basis

The Court makes the above recommendations on the basis that the new extended day and changes to remuneration /non-pay conditions should be implemented from 1^stFebruary 2012 on a pilot basis with a review after a period of four months to be conducted by the National Implementation and Verification Group, and any residual issues to be discussed between the parties.

Compensation for loss of earnings

The Court recommends that where it is established, after the new system has been in operation for a period of one year, that an employee has incurred losses in earnings directly as a result of the implementation of the new changes then the Court recommends that such losses should be compensated in line with the terms agreed under PSA.

The Protocol

The Court recommends that this Recommendation should be should accepted as a composite package in full and final settlement of all outstanding issues referred to the Court. And the parties should conclude and agree the Protocol referred to, which is designed to facilitate the introduction of the extended day in various locations, taking account of the various operational issues which may arise.

The Court so recommends.

Signed on behalf of the Labour Court

Caroline Jenkinson
9th January 2012______________________
SCDeputy Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.