FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : HSE SOUTH - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms O'Donnell |
1. Subsistence Rate Payment.
BACKGROUND:
2. This dispute concerns a claim concerning the non-payment of subsistence payments to Dental Surgery Assistants in HSE Kerry Services and HSE Cork North Lee Services who are required to work away from their base in other Dental Clinics.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 14th September, 2015, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 17th February, 2016.
UNION'S ARGUMENTS:
3. 1. Staff in Dental Services in other areas of the HSE South have and continue to receive subsistence payments in accordance with the National Financial Regulations.
2. For a six month period from January 2013 to July 2013 these Dental Nurse members were not paid travel expenses they had incurred during the course of their duties and were significantly out of pocket.
3. For the past five years these members, purely on the basis of their location and the arbitrary decision of local management, have not received monies properly due to them.
EMPLOYER'S ARGUMENTS:
4. 1. The HSE South is paying subsistence rates to staff within the catchment areas identified, subject to applications for subsistence rates being deemed appropriate and in line with the national policies and procedures governing such rates.
2. If Management are satisfied that the staff member has been put to substantial extra expense for meals in consequence of his/her absence from normal headquarters, subsistence rates are payable.
3. Management is satisfied that it is adhering to HSE Financial Regulations in relation to payment of Travel and Subsistence to staff in Kerry and in North Lee Dental services.
RECOMMENDATION:
The dispute before the Court concerns the non-payment of subsistence payments to Dental Surgery Assistants in HSE Kerry Services and HSE Cork North Lee Services who are required to work away from their base in other Dental Clinics.
The Union submitted that the criteria for refusing such payments are not provided for in the provisions governing the payment of subsistence payments, namely, the Health Service Executive National Financial Regulation Travel and Subsistence NFR-05. It disputes HSE’s position on this matter where management hold that as there is a subsidised canteen available to the Claimants working away from base, then they should not be paid the allowance. The Union holds that there is no such restriction in NFR-05. The Union referred to a memorandum to all Dental staff dated 28thOctober 2010 which stated that staff would only be eligible to claim subsistence if there was no subsidised canteen within a 5km radius of their work. As a result the Dental Surgery Assistants were no longer paid subsistence payments. The Union submitted that this memorandum was contrary to NFR-05, requested its withdrawal and referred the matter to national level.
HSE management confirmed that Dental Surgery Assistants have access to subsistence allowances in accordance with the provisions laid down in the Regulations (NFR-05). Where management are satisfied that the staff member has been put to substantial extra expense for meals in consequence of his/her absence from normal headquarters, subsistence rates are payable. However, it was not prepared to concede the Union’s claim for an automatic payment of subsistence allowance. Management cited from the Regulations which state at 5.11.10 as follows:-
- “The ordinary rate of day allowance is not applicable to temporarily transferred officers who are able to travel daily between their homes and the office to which they are temporarily attached, or in other cases of repeated daily visits to the same place. In such cases, the payment of a day subsistence allowance will depend upon whether the officer is in fact put to substantial extra expense for meals in consequence of his absence from his normal headquarters. In each case where an allowance is justified, a special rate will be fixed.”
“There are a number of locations throughout the HSE where subsidised canteen facilities are available to Employees, including hospitals, some community care areas, and administrative headquarters. Employees travelling to locations with such facilities for meetings and events are required to use these facilities in lieu of claiming full subsistence allowance.”
Having considered the oral and written submissions of both parties the Court notes that the Claimants held an entitlement to subsistence allowance in similar circumstances up until 2010, when it was unilaterally withdrawn. The Court is of the view that good industrial relations practice entails engagement between the parties before such an entitlement is withdrawn.
The Court recommends that the allowance should be restored with effect from the date it was withdrawn. In the event that management wish to change the criteria for entitlement of the allowance then it should engage with the Union and process the matter in accordance with its normal industrial relations procedures.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
CO'R______________________
8th March, 2016Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Clodagh O'Reilly, Court Secretary.