FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : UNIVERSITY COLLEGE CORK - AND - IRISH NURSES' AND MIDWIVES' ORGANISATION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Regularisation of long-term acting-up position.
BACKGROUND:
2. The Claimant is currently the Acting Director of Nursing at the Cork Dental School and Hospital and based on the campus of UCC. INMO claim that there is no legal impediment nor objectively justified reason for not regularising the Claimant who is already being paid at the maximum point on the pay scale for the permanent position. The College claims that by appointing the Claimant permanently into the position they would be in contravention of provisions of the Universities Act, 1997.
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 1st July, 2014, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 30th October, 2014.
UNION'S ARGUMENTS:
3. 1. The Claimant has been in the acting position since 2006 and is fully comprehended by the agreement for long-term actors within the Health Sector.
2. It is the established practice that where nursing grades are employed in the public service their terms and conditions reflectthose in the Health Service.
EMPLOYER'S ARGUMENTS:
4. 1. Management are willing to fill the post and have consulted with the Department of Education and Skills who have instructed them that they are obliged to advertise the post and hold a competitive interview process of the candidates as is stipulated by the governing legislation.
2. There is no agreement at national level to regularise acting positions within the university sector. Concession of this claim could have implications for the whole Educational Sector.
RECOMMENDATION:
The dispute before the Court concerns a claim by INMO on behalf of an employee who has been Acting Director of Nursing in Cork Dental Hospital since 2006. The Union contends that the Claimant should be regularised in her position in the same way as has applied at national level in the Health Sector. The Union referred to the provision of HSE HR Circular 017/2013 dated 15thOctober 2013 which was implemented in accordance with the provisions of the Haddington Road Agreement, Appendix 7(4)“Regularisation of long term actors”.
The Union submitted that as the Claimant was at the maximum point of the scale such regularisation would be cost-neutral. It argued that she had been acting for an inordinate period of time and that her pay and conditions of employment generally reflected those applicable in the Health Sector and that as such she was well comprehended by the 2013 Agreement approved in respect of long-term actors across the entire Health Service.
Management disputed the Union’s position as the University comes within the remit of the Department of Education and Skills and not the Department of Health and accordingly was bound by the former’s regulatory processes. It stated that while there was no agreement at national level to regularise acting positions within the Education Sector, the University had been granted approval to fill the post currently held by the Claimant on a permanent basis.
Having considered the submissions of both parties the Court notes that the normal procedure within the University is to seek Ministerial approval in respect of implementing all HSE Circulars on terms and conditions of employment applicable to the Claimant and in all cases such approval has been forthcoming to date. Therefore, the Court is of the view that HSE HR Circular 017/2013 dated 15thOctober 2013 applies to the Claimant and in those circumstances the Court recommends that the University should seek approval from the Minister to apply that Circular to her in the same way as all other HSE Circulars have been applied to her in the past.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th December, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.