FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - INMO DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendations r-082906-ir-09/EOS & r-082907-ir-09/EOS.
BACKGROUND:
2. This dispute concerns the method of calculating holiday premium for two individual Nurses employed by the HSE at Sligo General Hospital. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 12th August, 2010 the Rights Commissioner issued the following Recommendation:-
- "Having considered all of the evidence presented at the hearing, I am satisfied that the method of calculation used with respect to [the Workers'] holiday premia was incorrect ... I recommend that the loss incurred by the [Workers] be restored within a 6 week time frame and that the parties agree a transparent and mutually acceptable formula that complies with the provisions of Department of Health circulars on the matter."
On the 21st September, 2010 the Worker appealed the Rights Commissioner's 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 20th March, 2012.UNION'S ARGUMENTS:
3. 1. The Workers have been paid the inaccurate holiday premium for years.
2.The Employer has conceded that the incorrect holiday premium was paid.
3.The Employer should now honour its obligation to the Workers.
EMPLOYER'S ARGUMENTS:
4. 1.Concession of this claim would result in staff being compensated twice for Bank Holidays.
2.Concession of this claim would result in similar claims across the Health Sector.
3.Concession of this claim would place a significant financial burden on the Employer.
DECISION:
This dispute concernsthe method of calculating holiday premium for two individual Nurses employed by the HSE at Sligo General Hospital. The method of calculating this benefit was set out in a Rule Book produced by the HSE-EA which is dated April 2008. It provides in relevant part as follows: -
- “Calculating Holiday Premium Pay
To calculate holiday premium the total premium pay received by the employee should be divided by the number of contracted hours worked by the employee in a year (this gives the average earnings per hour) and multiplied by the number of annual leave days in hours that the employee is entitled to.
For example, a nurse who is contracted to work 39 hours per week and has an annual leave entitlement of 24 days would be entitled to the following:
Total premium earnings: €7,500
Total annual contact hours: €2,028 (39x52)
Annual leave entitlement in hours €187.2 (24x 8)
(7,500 / 2,028) 187.2= €692.31 premium pay
The Union contends that this mode of calculation is incorrect. It submitted that the calculation should be a relatively simple exercise in which the amount of premium payments would be multiplied by the number of annual leave hours and the result divided by the annual number of days on which the employee is contracted to work. According to the Union the divider for the purpose of this exercise should be 260 (this being the number of days on which there is a liability to work in a year). The mode of calculation used by the HSE uses a divider of 365.
This difference in the divider used appears to be the crux of the dispute between the parties.
Both sides contend that the arrangements for the payment of premium pay were determined by a national collective agreement between the HSE (or its statutory predecessors) and the Unions representing its staff, including INMO. The parties were asked to produce the original agreement, but neither side has been able to do so. It appears, however, that the mode of calculation used in this instance is applied consistently across the HSE. It further appears from a letter sent by the Union to the HSE, dated 20thAugust 2009, that this case was referred to the Rights Commissioner as a “test case”.
Having regard to the provision of s.13(2) of the Industrial Relations Act 1969 (which provides that a Rights Commissioner shall not hear a case concerning the rates of pay or the annual holidays of a group of workers) the Court has very considerable doubt as to the appropriateness of this matter being referred to a Rights Commissioner. In any event it is clear that the outcome of this case will have significant implications for all HSE staff. Moreover, the Court is being asked, in effect, to interpret a national collective agreement, the terms of which have not been furnished by either party.
There are national negotiating procedures in place involving the HSE and the unions representing its staff. In the Court’s view that is the appropriate forum at which this matter should be resolved. If the dispute cannot be resolved at that level the appropriate course of action would be for the parties to process the matter to normal procedures, including a reference to the Court under section 26(1) of the Industrial Relations Act 1990.
The Rights Commissioner recommendation is varied accordingly
Signed on behalf of the Labour Court
Kevin Duffy
31st January, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.