FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE - AND - IRISH MEDICAL ORGANISATION DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. (1) Proposed changes to historic rest days. (2) Proposed changes to rest day entitlement. (3) Delivery of second opinions as required under the Mental Health Act, 2001.
BACKGROUND:
2. The parties in this case asked the Court to investigate three industrial disputes and to make recommendations to the parties regarding the manner in which they should be resolved. The dispute regarding historic rest days does not come within the scope of the Public Service Agreement 2012 – 2014 (“the PSA”). The parties are agreed that the other two disputes come within the scope of that Agreement and accordingly they have agreed that they will treat the Court's Recommendation as binding upon them in these cases. This commitment amounts to a collateral agreement between the parties that is not a matter for this Court. All three disputes were referred to the Court pursuant to the provisions of Section 26(1) of the Industrial Relations Act 1990. Accordingly, the Court has addressed the issues in dispute by way of Recommendation rather than binding decision.
RECOMMENDATION:
Historic Rest Days
The Court notes that the parties are agreed that this dispute does not come within the scope of the Public Service Agreement.
This dispute concerns a proposal by the HSE to vary the “historic rest days” agreement that was concluded between the parties in 1997 in respect of the Consultant Contract and 1998 in respect of the Academic Consultant Contract. Under the 1991 Consultant Contract, Consultants were entitled to carry forward outstanding rest day entitlements ad infinitum. By 1997/1998 a number of consultants were carrying forward large numbers of accrued outstanding rest days. In 1997/98 a new agreement was reached between the parties. This provided that outstanding accumulated rest day entitlements would be red circled and taken before retirement. The 1997/98 Contracts provided that all subsequent rest days not taken within 6 weeks would be forfeit.
This has led to a situation in which some consultants are carrying forward up to one year’s accrued leave that must be taken before retirement. Most consultants avail of their accrued leave and are replaced by a locum in the final year of their employment. However In some cases the HSE, for various reasons, has found it necessary to ask some consultants to act as their own locum whilst they avail of their accrued leave. This in effect means that they are paid double time for the final year of their employment. This situation is compounded by the fact that Consultants can, on giving 3 months’ notice, retire at any time after their 60thbirthday. In some cases it is not possible to source a locum to replace the retiring consultant within three months and the appointment of a permanent replacement at this grade can take up to eighteen months before all of the processes are completed and a suitable candidate becomes available to commence work.
The HSE now wishes to reduce the accrued historic rest day entitlement of all consultants concerned by 50%. It submits that this is necessary in the current financial constraints on the public finances and brings the cost of the agreement back in line with the level of costs anticipated in 1997/1998 when the agreement was originally concluded between the parties.
The IMO submits that the Agreement was entered into in good faith by both sides and represents payment for work done. It submits that the numbers involved is reducing over time and will, in due course, be entirely eliminated from the system. It argues that any change to the terms of the agreement at this stage would penalise those remaining in the system relative to those that have already retired. It argues that such a change would be grossly inequitable and a severe infringement of their rights and contractual entitlements.
The Court takes the view that there is a balance to be struck between the rights of the Consultants affected and the financial realities facing the HSE in particular and the State and taxpayers in general. In this context the Court finds that the HSE has made a reasonable case for reducing the amount of accrued leave to which the affected staff members are entitled. However the Court finds that the reductions proposed by the HSE are excessive.
Accordingly the Court recommends that the HSE revise the proposed 50% reduction to 25% and extend the window in which the leave may be taken from 2018 to 2020.
The Court so recommends.
Changes to Rest Day Entitlements
The parties agree that this dispute comes within the scope of the Public Service Agreement.
The Court takes the view that the “on call” and “call out” arrangement in place for this category of staff are out of line with standard arrangements in the public health services. Neither party presented any compelling evidence to the Court that would justify the exceptional treatment afforded this group of workers.
The Court is aware that standard “on call” and “call out” arrangements in the health service makes provision for:
- 1) An amount of compensation for being on call
2) A payment in respect of each incident of call out
3) A period of compensatory rest after each actual call out.
Compensatory rest varies relative to call out’s that occur before and after midnight so as to protect the health and safety of workers and eliminate fatigue caused by interruptions to their daily rest breaks or to their sleep.
The Court notes that this dispute relates exclusively to the level of compensatory rest afforded to this group of workers.
In all the circumstances of this case the Court recommends that compensatory rest for this group of workers be brought into line with the standard arrangements in place for other professional grades in the public health services. This would involve the replacement of the current arrangement whereby compensatory rest is allowed at a fixed rate dependent on the “on call” roster one works with an arrangement in which compensatory rest is allowed after an actual “call out” incident. This arrangement creates a closer relationship between call out and recovery time and would allow the affected Consultant recover from the interruption to his or her daily rest period or sleep as recommended in the research studies presented to the Court.
The details of the revised arrangements should, in line with the provisions of the PSA be agreed and implemented with six weeks of the date of this Recommendation.
Both parties told the Court that the 1:1 and 1:2 rosters that are in place in the health services are undesirable and ought to be eliminated as part of the current restructuring and reconfiguration discussions that are taking place. The Court equally takes the view that such “on call” rosters are undesirable and warrant exceptional treatment pending their elimination. The Court also notes that the numbers involved in these rosters is very small and continues to decline.
Accordingly, the Court recommends that the current rest day arrangement continue to apply to Consultant’s working those rosters until they are eliminated through the restructuring discussions currently taking place. As staff transfer to less onerous “on call” rosters they should simultaneously transfer to the standard HSE compensatory rest arrangements recommended above.
The Court so recommends.
Second Opinions
The Court notes that this dispute comes within the scope of the Public Service Agreement 2010 -2014.
The Court notes that Consultants currently employed by the HSE are paid an allowance for undertaking this work while retired Consultants or those engaged exclusively in private practice are paid a fee for so doing. The HSE submits that there is no justification for making an additional payment employed Consultants for undertaking this work and proposes to make it part of their normal duties. The IMO submits that this will undermine the statutory independence of a Consultant’s opinion and will compromise the operation of the relevant provisions of the Mental Health Act 2001.
It is not within this Court’s competence to determine the legal issues that have been raised in this case. Accordingly the Court has confined itself to the industrial relations issues involved and its recommendations are contingent upon the legal issues being addressed by the relevant competent bodies.
Had the parties described the payment concerned as a “fee” rather than an “allowance” the HSE would, under the terms of the Public Service Agreement 2010 -2014, have been perfectly entitled to incorporate the work involved into the contract of employment and eliminate the payment of any “fee” to the affected group. However both parties insisted on describing the payment to employed consultants as “an allowance”. Accordingly it falls to be dealt with in the same manner as all other allowances that are currently under discussions between the parties to the Public Service Agreement.
The Court addressed the issue of the elimination of allowances in LCR 20357 where, in relevant part, it said:
- The Court recommends that the question of the continuation of the allowances in issue in this case be considered by the parties in light of the outcome of this review and any agreement entered into between Public Sector Employers and Public Sector Unions on foot of that review.
The Court has been told by the parties to the Public Service Agreement that matters relating to its interpretation will be dealt with exclusively by the National Implementation Body. The Court is confined by the parties to apply the agreed interpretation of the Agreement to the facts on any case before it.
It was on this basis that the Court adopted the position set out in LCR 20357. Until the National Implementation Body addresses the issue of “allowances” the Court must follow the position set out therein.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
6th November, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.