FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HEALTH SERVICE EXECUTIVE - AND - IRISH MEDICAL ORGANISATION DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appropriate remuneration arrangements for NCHD's / Junior Doctors working after midnight as part of their normal working week.
BACKGROUND:
2. This dispute concerns appropriate remuneration arrangements for NCHD's /Junior Doctors working after midnight as part of their normal working week. This 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 September, 2013, in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 26th November, 2013.
UNION'S ARGUMENTS:
3 1 NCHD's are being asked to move to a night duty based system with a view to reducing their working hours which are currently illegal under the NCHD
Contract, Organisation of Working Time Act 1997 and the European Working Time Directive.
2 As this is an existing pay rate and standard across the public sector the IMO contend that this cannot be described as a cost increasing claim.
3 With regard to any cost increasing arguments, the change in roster should allow a net reduction in hours which would therefore reduce the individual employee's salary and should reduce the cost to the HSE. .
COMPANY'S ARGUMENTS:
4 1 The claim for payment of a premium of this nature is clearly cost-increasing and is thus prohibited under the provisions of the HRA/PSA (Section 1.(9), 1.(10) HRA and 1.(27) PSA).
2 The health services are facing huge financial pressures as they approach 2014. The health service is required to make additional savings of close to €1bn in it's budget for 2014.
3. The NCHD's will continue to access overtime earnings post full EWTD compliance and will be remunerated for same in accordance with the provisions of the 2010 contract and the HRA.
RECOMMENDATION:
The Court has carefully considered the submissions of both parties to this dispute.
The Court notes that neither side was in a position to quantify the cost of introducing a 48 hour week for Hospital Doctors. Both sides agreed that the pay bill for Hospital Doctors covered by the claim would fall significantly. Management, however, expressed the view that the cost of providing medical cover for patients in the new working arrangements might exceed current costs. However, it was not in a position to provide the financial estimates on which it based this opinion. Accordingly, the Court is not in a position to decide that the claim is cost-increasing and thereby prohibited under the terms of the Haddington Road Agreement.
The Union states that all HSE staff that work the night shift envisaged in the new rosters are paid a shift rate of 25% for hours worked at night. It maintains that it is seeking the rate for the job set out in the HSE Terms and Conditions of Employment published in May 2009.
The HSE confirmed this to be the case with the exception of Emergency Medical Technicians who are paid a standard shift rate for all shifts worked. It maintains, however, that NCH Doctors enjoy other benefits that are not enjoyed by other grades of staff generally and that these offset those payments. The payments Management identified were a one-hour paid meal-break and annual study leave arrangements.
The Court finds that Doctors are permanently on-call while on meal-breaks and are paid accordingly. The Court also finds that NCH Doctors are described as employed on training contracts and study leave is an integral part of their training programmes. Accordingly, the Court does not find that these payments offset shift pay paid to other night workers.
Finally, the Court distinguishes between claims for pay increases and those in which Workers are seeking the application of the established rates of pay for the job or shift rates, etc. In this case the Court finds that the claim is of the latter type and constitutes a claim for an established shift rate that the HSE applies to all staff similarly affected. It is not a cost-increasing claim within the normal industrial relations meaning of that term.
On the basis of the evidence presented therefore, the Court finds merit in the Union’s claim and recommends that the Doctors receive payment for night work in line with normal practice in the HSE in accordance with the provisions set out in the Terms and Conditions of Employment of HSE staff issued in May 2009.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
19th December, 2013______________________
CO'RDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Clodagh O'Reilly, Court Secretary.