FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : SOUTH INFIRMARY-VICTORIA UNIVERSITY HOSPITAL AND MERCY UNIVERSITY HOSPITAL - AND - IRISH NURSES' & MIDWIVES' ORGANISATION DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Reconfiguration.
BACKGROUND:
2. The case concerns an alleged breach of a 2012 Agreement by Management of the South Infirmary-Victoria University Hospital and the Mercy University Hospital with regard to the staffing of the Urgent Care Centre at the former St. Mary's Orthopaedic Hospital, Cork. Both Hospitals reject this claim on the basis that the HSE in July 2012 informed them that it could only fund the transfer of 4.7 WTEs and not the 6.5 WTEs which was originally promised thus leaving a shortfall of 1.8 WTEs (2 staff). Management claims that staffing levels are entirely predicated on the HSE's commitment to fund transfers and it is not within their remit.
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 was not reached, the dispute was referred to the Labour Court on the 23rd July 2012, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 2nd November, 2012.
UNION'S ARGUMENTS:
3. 1. The Public Service Agreement 2010-2014 states that the matter of the transfer of staff between employers would be subject to the Transfer of Undertakings legislation. Management is in breach of its consultation notice obligations under this legislation. Some staff had up to thirty years service and could have remained in the South Infirmary-Victoria University Hospital without the fear of being redeployed due to their seniority.
2. The actions of the Management are both opportunistic and unreasonable and it is not appropriate that they should renege on the commitment given on 27th February 2012 which would have ensured that the Urgent Care Centre is staffed by 6.5 WTEs as per the 2012 Agreement.
EMPLOYER'S ARGUMENTS:
4. 1. Management does not dispute the Agreement of 27th February 2012, providing for 6.5 WTE transfers to the Urgent Care Centre at the former St Mary's Orthopaedic Hospital. Current service needs are such that the 6.5 WTEs are not needed at the Urgent Care Centre resulting in staff being redirected to more urgent service needs in neighbouring Hospitals and in particular the Emergency Department at the Mercy University Hospital.
2. The HSE is the ultimate budget-holder and decision-maker and the Hospitals' Management are therefore not responsible for the two Nurses who have now transferred to Cork University Hospital and depleted the promised staffing levels at the Urgent Care Centre at the former St Mary's Orthopaedic Hospital.
RECOMMENDATION:
The Court has carefully considered the submissions of both parties to this dispute.
The Court finds that the parties entered into a series of collateral agreements with each other based upon commitments given by the HSE regarding the number of staff and level of funding that would flow to each facility arising out of the reconfiguration of the Acute Hospital Service in the Cork (Cork/Kerry) area.
On foot of these commitments the Hospitals and certain individuals, in good faith, took certain steps to secure their respective services and future employment. When the HSE clarified or altered its previous commitments the Hospitals were left stranded and made decisions to the detriment of a number of individual staff members.
The Union appealed against these decisions.
Having considered the evidence given, documents presented and submissions made, the Court finds that there was a collective agreement in place between the Hospitals' Managements and the INMO. When the circumstances changed as outlined it was incumbent on the respective Managements to so advise the INMO and enter into discussions with a view to amending the collective agreement. It was not open to the respective Managements to unilaterally alter the agreement to the detriment of the Nurses affected.
Accordingly, the Court recommends that the Hospitals' respective Managements restore the terms agreed with the INMO and enter into immediate talks with a view to agreeing relevant and appropriate changes to the Agreement. Such talks should be completed within twelve weeks of the date of this Recommendation.
At the end of such discussions the parties may refer any outstanding issues back to the Court for final recommendation.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
18th December, 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.