FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DAUGHTERS OF CHARITY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - IRISH NURSES AND MIDWIVES ORGANISATION DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. The payment of an on-call rate of pay for four Nurse Managers.
BACKGROUND:
2. This dispute relates to an on-call rate of pay for four Nurse Managers.
The Union said that in addition to working their contracted hours, each Worker provides an out of hour’s on-call service as required by the employer. The Union is seeking the correct rate of pay to be applied to each Worker retrospectively for the on-call service.
The Employer said the Nurse Managers are rarely called in and the work generally involves providing phone advice to a Social Care Worker or care Worker. There is no Department of Health and Children approved on-call allowance for nurses providing such a service in the intellectual disability (ID) sector.
- This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 8 August 2016 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 28 March 2017.
UNION’S ARGUMENTS:
3. 1. The nature of the on-call commitment is identical to that of theatre nurse on-call
2. The on-call payment is the appropriate payment as that is the service
3. This is not a cost-increasing claim but a claim for the employer to correct the formula for the rate of pay where the on-call liability extends over a full weekend.
EMPLOYER'S ARGUMENTS:
4. 1. This is a cost-increasing claim
2. There is no nationally agreed Department of Health and Children/HSE rate for CRS Nurse Managers who provide an on-call service.
3. In the absence of a nationally agreed rate, the Employer has introduced a rate for being on-call and accepting call based loosely on the theatre nurse rate which it believes is fair and reasonable.
RECOMMENDATION:
The Court has carefully considered the written and oral submissions of the parties.
The Trade Union contends that a local agreement in 1999 instituted an on-call arrangement for nurse managers. The Trade Union further contends that following the issue of circular 33/2003 it was agreed that the Theatre On-Call rates set out therein (not including the call out payments) should correctly have applied to the nurse managers concerned in the within claim.
The Respondent contends that no agreement exists to apply the terms of circular 33/2003 in full to the nurse managers concerned in the within claim. The Respondent contends that the arrangement applying on the site has been related to but not duplicating the terms of circular 33/2003.
The Court notes that the current arrangement for compensation has applied on site since at least 2003 without disputation until the lodgement of the within claim in 2014. The Court notes that in the intervening period the parties concluded agreements at national level prohibiting the making of cost-increasing claims. Those agreements remain in force by agreement between the parties.
The Court has been advised that the Respondent has made application in accordance with the terms of circular 011/2013 for the retention in its current form of the on-call arrangement at issue in the within dispute.
The Court notes that no agreement at national level is in place as regards arrangements to apply to nurse managers providing on-call service in the manner of the nurses concerned in the within claim. In particular neither party has been able to provide the Court with an agreement at local or national level which provides for the application of the 2003 Theatre Nurse Circular to nurses other than theatre nurses and in particular to Nurse Managers in the ID sector. Neither party before the Court has been in a position at the hearing to definitively set out to the Court the range of arrangements applying at other locations across the country wherever such service is given by nurse managers in the ID Sector if indeed such service is provided in any other setting in the sector.
The Court is concerned that any recommendation it might make in the within claim might have implications unknown to it for the delivery of on-call in other settings across the ID Sector. For that reason the Court recommends that this matter be considered as a national matter where comprehensive information can be considered or alternatively that the matter be addressed locally when the parties have established clarity as regards arrangements applying across the sector generally and to nurse managers in particular.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
12 April, 2017Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.