AWD1514

Ms Niamh Kenny commenced in MRHT on 4 January 2013 in the Renal Unit

Ms Beata Krankowska commenced in MRHT on 1 march 2011 in the Renal Unit

Ms Viola Kelly commenced in MRHT on 1 March 2012 in the Renal Unit

Ms Rachel Scott commenced in MRHT on 13 July 2010 in the Oncology Department

Ms Maura Reilly commenced in MRHT on 1 January 2011 initially in the Oncology/Haematology Department and subsequently in the Renal Unit.

They all subsequently became direct employees of the HSE.

Both the Renal Dialysis and Oncology Units are classed as specialist locations by the HSE. Nurses holding a specialist qualification that are assigned to work in those units are, under a collective agreement concluded in 2000, entitled to a Specialist Qualification Allowance. Where they work in such a Unit and do not hold a relevant Specialist Qualification in that area they are entitled a “Location Allowance” that has a lower value than the Sepcialist Qualification Allowance.

There is no dispute between the parties regarding the qualifications held by each of the Complainants and or units in which each of them worked.

The Complainants sought payment of the relevant allowances from the employer citing their entitlements under the Act. They were refused payment on the grounds that neither of the allowances come within the definition of “basic pay” within the Act.

The single issue in dispute between the parties is whether either the Specialist Qualification Allowance and or the Location Allowance is part of basic pay for the purposes of the Act.

Position of the Parties

The Union argues that both allowances are a collectively agreed and constituent part of the basic pay of nurses working in the respective units. It argues that it follows that nurses employed in those units as temporary agency workers are entitled to the basic pay they would have received had they been recruited directly by the HSE. It cites Directive 2008/104/EC and the provisions of the Protection of Employees (temporary agency workers) Act 2012 in support of its contention. It finally relies on the terms of a collective agreement concluded in 2000 with the HSE that governs the payment of the allowance.

Management argues that the allowances are not part of the basic pay of nurses employed in those units. It argues that they are more properly classified as payments in addition to basic pay that are specific to staff working in those units and that vary depending on the qualifications held by the individual nurse. It argues that a payment that varies with discretionary qualifications held by a nurse working in such a unit cannot be considered part of basic pay. It further argues that the definition of basic pay set out in the Act is restrictive and it is not open to the Court to expand it beyond the limits imposed by the Oireachtas.

The Law

This Act was signed into law on 16^thMay 2012. It transposes into Irish law Directive 2008/104/EC of the European Union on Temporary Agency Work. Consequently the Court is obliged to interpret and apply the Act, as far as possible, in light of the wording and purpose of the Directive so as to achieve the result envisaged by the Directive. The Act commenced on 16^thMay 2012. Sections 2, 3, 4, 5, and 6 are deemed to have commenced on 5^thDecember 2011, the date on which Members States were required to implement the Directive.

The purpose of the Directive is set out at Article 2 thereof as follows:

• The purpose of this Directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment, as set out in Article 5, is applied to temporary agency workers, and by recognising temporary work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working.

• The principle of equal treatment
  1.The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.

• 6.— (1) Subject to any collective agreement for the time being standing approved undersection 8, an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.

• (3) Where the assignment of an agency worker commenced before 5 December 2011 and ended or ends on or after that date, that assignment shall, for the purpose of determining the agency worker’s basic working and employment conditions in accordance with subsection (1), be deemed to have commenced on that date.

• "basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to—
  • (a) pay,
    (b) working time,
    (c) rest periods,
    (d) rest breaks during the working day,
    (e) night work,
    (f) overtime,
    (g) annual leave, or
    (h) public holidays;
  
  Pay is defined by the same section as:-
  • (a) basic pay, and
    (b) any pay in excess of basic pay in respect of—
    (i) shift work,
    (ii) piece work,
    (iii) overtime,
    (iv) unsocial hours worked, or
  (v) hours worked on a Sunday,

In the case ofNurse on Call and Geraldine Mahon (AWD 131) 30 August 2013the Court considered the question of what constitutes basic pay. In that case it stated the following

• In determining whether a payment forms part of basic pay the Court would normally have regard to the manner in which the parties themselves regard it. In that regard the Court notes that in Circular Letter 13/2002 issued on the 7^thMarch 2002 dealing with the treatment of a lump sum payments determined by reference to the level of basic pay, the Department of Finance approved payment of a 1% lump sum to certain members of staff in the following terms: -

  • “A once-off lump sum equal to 1% of annual basic pay, rounded to the nearest cent, is to be paid on 1 April 2002. In accordance with normal practice, annual basic pay includes allowances in the nature of pay on that date but does not include other additions to pay.”
  An allowance in the nature of pay is normally understood to be one on which pension contributions are payable. More importantly however this circular reveals that basic pay is understood by both employers and trade unions in the public service to include allowances in the nature of pay. The Court was told that staff in receipt of the allowance in issue received the lump sum.

The allowance moves in line with increases in basic pay and is included for pension purposes in the calculation of a nurse’s salary.

In accordance with the provisions of circular letter 13/2002 it would appear therefore to be an allowance in the nature of pay and accordingly one that is treated by the parties as an integral part of basic pay.

More recently Circular DPE/71/12/13 issued on 12^thJune 2013 which deals with the

Application of pay adjustments and related measures in accordance with the Financial Emergency Measure in the Public Interest Act, 2013 and the Haddington Road Agreement

States “ …reference to salary or salaries in the circular is to be taken to mean
salary or salaries inclusive of allowances in the nature of pay which are fixed periodic
pensionable allowances, where a fixed periodic pensionable allowance is an allowance of a fixed amount, which is taxable and pensionable, is not paid in respect of an expense incurred and is not reliant on the type or amount of the work performed at for example, weekend or nights

The allowances at issue in this case are of a type that comes within that definition.

It was not disputed that a directly employed nurse assigned to one of the identified units would be paid at least the location allowance.

Section 6(1) of the Act requires that the claimants be paidthe same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.

In that context the Court determines that the location allowance is treated as part of basic pay for all other purposes by the HSE and must accordingly be so treated for the purposes of the Act. It further determines that it applies generally within the HSE to nurses assigned to work in the identified units and it came into being on foot of a collective agreement between the relevant trade unions and the HSE and that it is given administrative effect by way of a circular letter issued by the Department of Health.

Accordingly the Court finds that the claimants are entitled to payment of the location allowance and determines accordingly.

The second question that arises is whether basic pay includes the “Specialist Qualification Allowance” that applies to nurses holding a Professional Qualification and who work in a unit for which a location allowance is payable.

The first thing to be noted is that holding such a qualification is not a mandatory requirement to work in such a unit. Accordingly payment of the allowance is not automatic. It is contingent upon the nurse in question both working in the unit and holding a relevant professional qualification. To that extent it can be distinguished from the location allowance the payment of which is automatic and universal upon appointment to work in the unit and does not vary with the qualifications of the individual.

Management argues that an allowance the payment of which is contingent on the qualifications of an individual cannot be considered part of one’s basic pay. The Union on the other hand argues that it is an agreed rate that applies to a qualified nurse working in a relevant unit and as such is an element of basic pay for qualified staff. It further argues that the relevant test is “what rate of pay would a directly employed a nurse who holds the relevant specialist qualification working in such a unit be paid”. Management argues that the relevant test is “what is the basic rate of pay of a nurse working in such a unit”.

In deciding this matter the Court is not aided by the fact that there is no provision for a comparator in the Act. The Court must decide the matter in accordance with section 2(1) of the Act that, in relevant part states

“basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to—

(a) pay,

It is common case that the basic working and employment conditions in this case were established by collective agreement and are thereby inserted into the contract of employment. That collective agreement makes provision for different treatment in relation to pay and conditions of employment for nurses that work in a relevant unit and either hold or do not hold a relevant specialist qualification. Where they hold a relevant specialist qualification they are by agreement paid one rate of pay. Where they do not they are paid a lesser rate of pay.

It is common case that the collective agreement in place explicitly provides for the payment of an allowance to qualified nurses working in identified units. Where a directly employed nurse holds the qualification and works in such a unit he or she is automatically entitled to payment of the allowance. Accordingly payment of a Specialist Allowance is inserted into the contract of employment of permanently employed nurses by way of a collective agreement between the parties. That collective agreement was given administrative approval in a circular letter issued by the Department of Health.

It is the case therefore that directly employed nurses holding a specialist qualification and working in a relevant unit is paid a rate of pay that includes the qualification allowance. The claimants in the case before the Court equally hold a relevant specialist qualification and work in a relevant unit. They accordingly can reasonably argue that the allowance is part of the basic pay of similarly qualified directly employed nurses.and by extension comes within the definition of basic pay within the meaning of the Act.

The Court so decides and determines accordingly.


The Court determines that the complaint is well founded and orders the respondent to pay the complainants the relevant location and specialist qualification allowances for the period of time the satisfied the criteria for payment of those allowances set out in the relevant collective agreements and circular letter.

The Court so determines.









Signed on behalf of the Labour Court



Brendan Hayes
16th June, 2015______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.