FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE DUBLIN MID LEINSTER - AND - PNA DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Non Payment of Community Allowance.
BACKGROUND:
2. This case concerns a dispute between Management and the Union in relation to the non-payment of a Community Allowance to a Community Mental Health Nurse (CMNH) following her appointment to the post in May 2012. Management's position is that allowances were no longer to be paid in accordance with the terms of the Public Service Agreement (PSA) 2010-2014. The Union is seeking the payment of the allowance as it was paid to all other CMNH's.
The dispute was not 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 matter was referred to the Labour Court on 24th October 2012 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 26th March, 2013
UNION'S ARGUMENTS:
3 1 The allowance is a long standing feature of agreements between management and the Trade Unions and is payable to reflect the move of mental health services from residential to community based. It is paid to all other CMNH's and should be retrospectively applied to the worker in this case.
2 The Union does not accept that the allowance is not payable in accordance with the PSA as the post was advertised and applied for prior to the existence of that agreement. The CMHN was not responsible for the delays that ensued in relation to the filling of the post and she should not be penalised as a result.
MANAGEMENT'S ARGUMENTS:
4 1 The allowance was no longer being paid when the worker accepted the post of CMHN. This had been clarified to her and she was fully aware of the situation.
2 The PSA 2010-2014 provided that allowances were no longer to be paid in respect of new appointments. Other allowances that were in place were being paid prior to the ratification of the PSA and were therefore protected under the terms of the agreement.
RECOMMENDATION:
The Court has carefully considered the submissions of both parties in this case.
The Court finds merit in the workers claim. Community Mental Health Nurses are paid a Community Allowance. The HSE has argued before this Court on a number of occasions that the Allowance is paid in respect of extra duties undertaken by nurses appointed to the post. These include a liability to attend for work outside normal working hours, transporting patients in nurses private vehicles and for the performance of occupational therapy with the patients under their care.
The HSE has been adamant in its submissions to this Court, over a long period of time, that it is not a compensation payment for the loss of premium earnings on appointment to the post. However it now seeks to resile from that position and asserts that the Allowance is in the nature of compensation for the loss of premium pay on appointment to the post. The Court finds no merit in this argument. Moreover the HSE confirmed at the hearing that the allowance has, in the past, been paid to everyone appointed to the post irrespective of whether they had been in receipt of premium earnings prior to their appointment. Indeed the HSE confirmed that it had been paid to staff that had not worked in this state prior to appointment and therefore could not have surrendered premium earnings prior to taking up appointment.
The Court finds the agreement governing the payment of this allowance remained in place when the Claimant competed for the post. Clause 2.8 of the Health Sector Provisions of the Public Service Agreement 2010 –2014 provides that such agreements remain in place. As this allowance is not a compensation payment for loss of earnings on relocation or on appointment to the post it does not come within the redeployment provisions of that Agreement.
Accordingly the Court finds that the Claimant is entitled to payment of the allowance.
At the time the Applicant competed for the post in issue the allowance in payment to all post-holders. Whilst internal management correspondence dated September 2010 included a reference to replacing the Allowance with a once off relocation payment under the terms of the Public Service Agreement, the Court finds that this correspondence was not shared with the trade unions and no point amounted to agreement between the parties. Moreover the Court finds that the HSE was incorrect in describing the Allowance as a compensation payment arising out of the loss of premium payments on transfer to Community Nursing duties. Accordingly the approach set out in that letter is mistaken and inappropriate.
Accordingly the Court finds merit in the workers claim and recommends concession of the allowance in this case.
This recommendation is specific to the facts of this case and has no wider application.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
18th April 2013______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.