FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE - AND - INMO DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. Payment of Allowance
BACKGROUND:
2. The case concerns a dispute between the HSE and the INMO concerning two Public Health Nurses who claim they should have been in receipt of the Midwifery Allowance since July 2012. The claim was rejected by the HSE. The dispute could not be resolved at local level and was subject to 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 11th September 2015 in accordance with Section 26(1) of the Industrial Relations Act 1990.A Labour Court Hearing took place on the 12th November 2015.
UNION'S ARGUMENTS:
3 1 It is accepted the Midwifery Qualification Allowance was not applicable for the duration of the claimants training to be Public Health Nurses. However, it was their understanding that the Allowance was merely on hold as was the normal practice and should have been restored when the training was concluded.
2 The continuance of the Allowance post qualification was a significant consideration for both claimants in undergoing Public Health Nurse Training.
3 Any benefit derived from a higher point of scale commencement would cease on reaching the top point of the scale. The Allowance should be properly applied as it has been heretofore.
MANAGEMENT'S ARGUMENTS:
4 1 The Midwifery Qualification Allowance was abolished for new beneficiaries with effect from February 2012.
2 Prior to being Public Health Nurses the claimants were paid as Registered General Nurses in receipt of the Midwifery Qualification Allowance until their Public Health Nurse Training commenced. On being appointed as newly qualified Public Health Nurses on July 4th 2012 they became new beneficiaries and therefore the Allowance ceased to have application.
3 Given the unique circumstances of the claimants the offer made by the HSE to utilise the allowance to determine the claimants starting salary on the Public Health Nurses Salary Scale is fair and reasonable.
RECOMMENDATION:
The Court has given careful consideration to the extensive written and oral submissions of both parties to this dispute.
It is common case that the Claimants are not new entrants to the public service. It is also common case that they were in receipt of the midwifery allowance before they commenced training leading to a qualification in public health nursing. They undertook that training on the clear understanding that they would continue to be paid the midwifery allowance on appointment to the post of public health nurse. After they commenced training the HSE, following a Government decision, abolished the allowances for new entrants to the public service and for newly appointed public health nurses. It treated the claimants as coming within the scope of that decision.
The Court takes the view that the Claimants commenced their training on the understanding that they would, on appointment as a public health nurse, continue to be paid the relevant midwifery allowance. The HSE was a party to that understanding. Were it not for the Government decision it would have resumed paying the claimants the allowance on appointment to the post.
The Court takes the view that the claimants had a reasonable expectation that they would be paid the relevant midwifery allowance when they qualified as public health nurses. The practice of the HSE up to that time gave rise to that expectation.
In the circumstances it is not legitimate for the HSE to change the rules after the claimants had commenced their training.
Accordingly the Court recommends that the HSE pay the claimants the relevant midwifery allowance with retrospection to the date on which they commenced working as public health nurses.
The Court notes that all nurses who have commenced training for appointment as a public health nurse after the HSE Memorandum dated 12thOctober 2012 was issued did so with knowledge of its contents and accordingly are not affected by this recommendation.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
18th February 2016______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jonathan McCabe, Court Secretary.