FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : ROTUNDA HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - INMO DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Retrospective payment of subsistence allowance.
BACKGROUND:
2. 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 19 September 2017 in accordance with Section 26(1) of the Industrial Relations Act 1990. A Labour Court hearing took place on 13 October 2017.
UNION’S ARGUMENTS:
3. 1. The Union is seeking retrospective payment of subsistence allowance to the Community Midwife Team dating back to 2005.
2. Public Health Nurses carrying out a similar role have been paid subsistence from the date they commenced employment, and the claimants should be treated no differently.
3. Management have accepted that the claimants are entitled to the payment of subsistence. It is only fair and reasonable that Community Midwifes are now paid monies that they should have been receiving all along from the time they took up their posts in the community.
EMPLOYER'S ARGUMENTS:
4. 1. The Company submits that this claim is unreasonable.
2. The Company at present is currently operating at a deficit of 1.7 million. Clearly the financial position of the Company is not such that it can concede the Union's claim for retrospection to 2005.
3. The Company submits that its offer to pay six months of retrospection on subsistence allowance is fair and reasonable in all the circumstances.
RECOMMENDATION:
The issue in dispute is the payment of the public service subsistence rate to a cohort of workers who work away from their base on a regular basis and who meet the criteria for the payment of subsistence. This payment is not a payment in the nature of pay. The Employer initially rejected the claim as they believed the workers did not qualify but subsequently agreed to pay it from the date of the conciliation hearing with six months arrears.
The Union formally lodged a claim for the payment of subsistence in March 2015 but are claiming arrears back to 2005 the date which they believe the workers became eligible to claim subsistence.
Discussion
The issue before the Court is solely retrospection. Both parties agreed that the subsistence will be paid going forward to avoid any confusion in relation to the effective date the Court is recommending payment from 1stSeptember 2017.
In dealing with cases where the issue of arrears arises the court has tended to treat the date of claim as the time when arrears start accruing which in this case it is accepted was March 2015. Both parties in this case identified difficulties with the accurate calculation of any arrears that might arise as the appropriate records had not been kept. The Employer indicated that they believed the current annual cost would be approximately €750 euro a year and the Union had calculated it at a €1,000 euro a year.
The Court having read the submission of both parties and listened to the oral submissions on the date recommends that the workers covered by this claim be given €2,500 euro in compensation in full and final settlement of the claim
The Court so recommends
Signed on behalf of the Labour Court
Louise O'Donnell
24 October 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Michael Neville, Court Secretary.