Complainant

Respondent

Anonymised Parties

A Clinical Nurse Specialist

A University Hospital and Hospice

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00021106-001

13/08/2018

This case involves a claim for paid time off (special leave) to support the claimant in attending the Union Executive Council Meetings held in Dublin. The Employer has considered the claim and while recognising that the Claimants appointment to the Executive Council is positive has no means of supporting the initiative given the increased financial constraints of the Organisation.

Preliminary Issue:

Prior to the hearing, the Employer had sought that I recuse myself from the case. The WRC while initially granting an adjournment reviewed the request and overturned that decision. The hearing proceeded as planned on the above date.

At the outset of the hearing I introduced myself to the parties by saying that up to three years ago, I had worked as a Trade Union Official with the Union. I explained that I had prepared for the case and considered that I was impartial and capable of hearing the case and asked whether either party objected?

The Employer then raised a Preliminary Issue and objected to my hearing the case, stating that my employment by the Union was a problem for them. In advancing the case that my being delegated the case had placed me in an invidious position, the Employer argued that they were concerned about fair procedures and in avoiding the protracted process of having to consider an appeal to the Labour Court. The Employer sought an adjournment.

The Union opposed the application for adjournment and conveyed their approval to proceed. The Claimants representative indicated that they accepted that the Adjudicator was autonomous of the Union and requested to be heard. They concluded by stating that they had not known the identity of the Adjudicator in advance of the hearing.

I took an adjournment to consider my position, and reconvened the parties.

In deciding to proceed with the hearing under the IR Act, I gave the following reasons.

1.       I had never entered the employer’s premises.

2.       I had never represented the claimant.

3.       I was satisfied that the Director General of the WRC had delegated the case to me in the knowledge that I held the competence to hear the case. Following the earlier request for postponement, this delegation was further endorsed.

4.       I believed that I could decide the case impartially without risk of Objective Bias. I referred to the reliance on the Bangalore Principles of Judicial Conduct as set out in O Driscoll V Hurley {2016] IESC 32 in assessing a claim of objective bias against a Judge.

5.       I brought a wealth of experience to the role of Adjudicator from a myriad of employments and I had a positive track record in resolving Industrial disputes as a Union Official and an Adjudicator. This was an Industrial Relations case.

6.       The case is about the parties and should not be about me.

7.       I gave an undertaking to hold a fair hearing, where both sides would be heard and if I found merit in the Dispute, I would issue a recommendation to the parties, appealable by either party to the Labour Court in 42 calendar days. I undertook to carry out a thorough investigation into the Dispute before me and prevailed on the parties to themselves identify their perceived way forward on the claim.

I believe that I have defended and asserted my obligation to perform my function as an Adjudicator and I did not identify substantial grounds for my recusal.

The case proceeded on that basis and the exchange of documents followed between the parties. The Claimant was represented by Mary Power, Industrial Relations Officer, INMO and the Employer by Sophie Crosbie, Industrial Relations Executive at IBEC.

The Union on behalf of the claimant gave an outline of the case. The Claimant is seeking 20 days paid leave per annum as outlined by the Department of Health Circular SI146/11. The leave is necessary for her to attend all INMO Executive Council meetings. The claim also covers retrospection.

The Claimant has worked with this employer since 2005, she is currently working in a Community setting as a Clinical Nurse Specialist. The Claimant was elected to the Union Executive Council in June 2018 for a two-year term of office. She holds one of 16 clinical seats on the Union governing body. The Union rule book sets out that “The Executive Council must meet 11 times a year and such meetings will take place over two days.”

As a matter of protocol, the Union General Secretary wrote to the Director of Nursing at the Hospital seeking paid leave for the claimant in accordance with Department of Health Circular S146/11 from March 1981. This was denied and subsequently appealed relying on Section 14.1 of the Staff Handbook which outlined that “request for any such (trade union) leave will not be unreasonably withheld”.

On 26 July 2017, The Director of Nursing confirmed the Executive Committee of the Hospital decision on maintaining the 5 days per annum afforded to Union representatives. The Union endeavoured to resolve the situation by relying on the circular and a Labour Court case 20150, where a part time nurse was afforded the Circular stipulation of 20 days per year to attend Executive Council. Further engagement followed without resolution.

The Union relied on the sequential circulars of S146/11 from 1981 and HR S46/11 from 1984 to support the concession of the claim of 20 days in any one year to attend Executive Meetings.

The Union pointed to an omission on providing for paid leave for Executive Council in the staff handbook. During the hearing, it transpired that the claimant was the first Nurse to be elected to the Union governing body within this employment and had not anticipated release issues. She had in fact maintained her attendance requirements through rostering flexibility and annual leave which was a different arrangement to her Peer Group on the Council. She contended that her current arrangement was unsustainable long term.

The Union explained that they had an issue with the Employers unilateral decision to stop the claimant accessing full paid leave and while empathetic to service exigencies as a consideration, the claimant deserved to be supported in this her first opportunity to influence the Union at National level, which would be beneficial to her Employer. The Union opposed the Employer seeking to” hold a veto over the outcome of democratic elections in the policy making body of the union “

The Union referred to a previous rights commissioner recommendation from 2011, which followed a cessation of a Nurses Special Executive Council leave with pay during the Financial Emergency period. At that juncture, the Union argued that the HSE decision went to the heart of the democratic and representative arrangements as agreed between them. The Recommendation, submitted at hearing found in the Unions favour and re-instated the paid leave.

The Union closed by emphasising the key role of influence which the claimants holds as a member of the governing body of the Union. The Union pointed to the claimant’s positive influence of information dissemination and recruitment among the nursing workforce. The claimant was already giving a high amount of her personal time to Union work locally and she needed a more substantial support package to hold her in her national role during the anticipated high activity months ahead. The Claimant cannot sustain an erosion in her personal time and she seeks an assurance that she secures 20 days paid release per year of her elected office in addition to Conference leave. The Union contended that Union Democracy should not be thwarted by Service exigencies or arguments on resource curtailment.

The Hospital is a voluntary sector health facility providing specialist services and Older person care in Cork. It employs over 350 staff over Hospital and Community bases. It is funded by Section 39 funding, national treatment purchase fund, and fluid fund raising income (30%).The Organisation has a large operational deficit and a further capital debt. There have been delays in passing on the public service pay increases due to funding difficulties. The Employer submitted that the claim stood opposed.

The Employer runs the specialist community service where the claimant works amongst a staff of 20 who juggle a highly challenging workload. Two staff are on maternity leave and two on long term absence. Wards have been depleted to cover these absences. The Employer demonstrated many safe staffing concern statements to emphasise that the service is under extreme pressure which is further challenged by shortages of the ancillary public health nurses. The Hospital is also holding a large bank of time owing and has been unable to give this time back.

The Employer learned of the claimant’s election to the Executive Council 2018 -2020 after the fact. The Union at national Level made application for the claimants paid release for 12 stated dates in 2018 while referring to the Department of Health Circular S146/11 from 1981. The Employer was happy to grant leave in accordance with the normal process around trade union duties:

Employee representatives may be granted time off with basic pay to undertake routine duties arising from their position. Time off to attend Union duties is at the discretion of the relevant line manager and its contingent upon service needs being met. Requests for such leave will not be unreasonably withheld. A limit of two people per department will generally apply subject to staff constraints. Special leave with pay will be granted to non-full-time representatives to attend conferences/ meetings who are duly authorised to attend such meetings. This applies to all Unions.

Time Limits     Annual delegate Conference     2 days

                          Special Delegate Conference     1 day

                       Training Courses                                           2 days

The procedural requirement is prefaced by application one week before leave is due to commence.

The Employer Representative outlined that the claimant had written to the Hospital in July 2018 referring to the 1981 circular and the WRC Code of Practice on Employee Representatives. The Employer was not comprehended by this Circular as it pertained to Voluntary Hospitals and Health Boards. The Employer operated a Section 39 facility and the Union has not sought to enter negotiations to seek to extend the circular by agreement to the Hospital in the case.

The Employer engaged in correspondence with the Union but ultimately maintained the position that 5 days paid leave annually is reasonable.

Arguments:

The Employer contended that Dept. of Health Circular is addressed to Health Boards and Voluntary Hospitals and the Employer as a Section 39 facility is not provided for. The Staff policies, form an agreement at the level of the undertaking. They are informed by staff and an extension of the policy provision had never been addressed by the Union.

The Employer also submitted that the 1981-84 circulars had been overtaken by the WRC code of practice for Employee Representatives which provides

1 Facilities for employee representatives

(a)    Granting of such facilities should have regard for …. needs, size and capabilities of the establishment and should not impair the efficient operation of the establishment.

(b)    Representatives should be afforded necessary time off carrying out their functions in the establishment in which they work……….

(c)     Payment of Wages should be the subject of discussion in advance at the level of the establishment.

The Employer contended that as a Section 39 facility, the Hospital was not party to the agreement between the Dept. of Health and the Union from 1981-84. The Employer presided over a fair and equitable release arrangement and must be mindful of the impact of excessive release. The Employer submitted that the level of leave sought by the Union in this instance significantly adversely impacts the efficiency of the Hospital and is considerably out of line with the needs, size and capabilities of the hospital.

The Hospital is doing all that it reasonably can by applying flexibility to the complainant’s roster and allowing her 5-days to leave per annum. The Employer in analysing the facts of LCR 20510 submitted that there was no dispute on the applicability of the circular in that case.

The Hospital is constrained in both staff and finances and is unable to issue payment for 20 days per annum and no funding has been released from the funders. It would be inappropriate to direct charitable funds towards this issue. The Employer would have no issue if the Union covered expense.

The Employer closed by stating that the impact of the additional leave request would result in significant numbers of patients not being seen on time or more cancellations .The Director of Nursing outlined her significant legal responsibilities for safe care and her level of accountability .She stated that she was compelled to preserve these staffing levels in the face of financial constraints and while she believed that the claimants election to the Union Executive was a good thing she was unable to offer paid release and was bound by the Hospital Executive Committee decision on 5 days paid leave .

I have considered both party’s extensive submissions in the case. The back-drop location for this dispute is set in an extremely highly regarded health facility relevant to every family in the geographical location. Both parties presented as highly committed to this facility and I found this to be very impressive.

Nonetheless a Dispute has arisen at the facility and I have been requested to investigate this and in the absence of a prior settlement make a recommendation to the parties setting forth my opinion on the merits of the dispute.

The Union sought a recommendation on the application of two Circulars originating in the Department of Health from 1981 and 1984 These Circulars had currency at Health Board and Voluntary Hospital level. They clearly outlined a maximum leave allowance for “Non- full-time representatives “of 20 days (excluding branch/committee meetings) for attendance at Union Executive Meetings. The Circulars mentions special leave with pay in the context:

Annual Delegate Conference, Special Delegate Conference, Executive Meetings and Conferences of Irish Congress of Trade Unions.

This involves the national stage of Union work and must be regarded as a separate and distinct facility to the local leave arrangements for Shop Steward duties such as outlined in the WRC Code of Practice and The Employer Handbook.

The Employer has submitted that it should be excused from the application of the Circulars on two counts.

1 They are not a Health Service Executive Facility

2 The Service cannot release the claimant due to service exigencies.

The Employers Executive Committee had considered the request for 20 days special leave with pay and deemed the 5 days leave as allowed in the staff handbook sufficient. This position was maintained at hearing.

The Employer was visibly supportive of the claimant but were aggrieved that the election to the Union Executive was unexpected and they had no scope to make provision to meet the 20-day release or secure replacement for the claimant. They disputed the relevance of both precedents relied on by the Union.

For my part, I noted that the Employer had never hosted a Union National Executive member previously and were deeply apprehensive that they would be unable to recoup funding of back filling under their Service Level Agreement with their main funder, the Irish Health Service.

In considering both submissions, I have found the following:

·         The Employer presents as a Section 39, National treatment Purchase Fund and private Income Generated   funded Health Service. This tri partite funding model suggested at least a proximity to a public service. My view was strengthened on this when I considered that the Employer was a University Hospital, which constitutes a public entity.

·         I read Section 39 of the Health Act, 2004 which permits the Minister for Health to “give assistance” and to “contribute to expenses incurred “to any body who provides a service similar or ancillary to the HSE.

·         The 1981 and 1984 Circulars belonged to the Health Board/Voluntary Hospital era. This Governance model changed in 2004 with the Health Act but did not result in any visible modification of the Circulars. I cannot accept that the WRC Code of Practice is a veritable substitute as it speaks about local workplace initiatives.

This case is about the “ambassadorial role “of Executive Council member, which the Union referred to as a 22-member National Body. This is new territory for the Employer and one they felt was forced on them on the claimant’s election.

·         I accept that both Union cited precedents relate to directly employed HSE staff and the applicability of the circular was viewed by the former Chair of Labour Court in LCR 20510 as requiring national intervention on operational issues. The Employer in this case submits that they are a standalone 350 staff facility without recourse to extracurricular funding outside the Service Level agreement.

·         The Union submitted that this is a “once off “problem as all other executive council members have been granted leave across a myriad of funded facilities, public and private and to deny the claimant leave is to disturb Union democracy.

·         I note that the Claimant was elected by Union members from the broader Health Service.

I found both parties polarised in this Dispute. The Claimant had a very clear desire to take her place in accordance with her electoral mandate. She was clearly struggling trying to achieve this in her time off and against the backdrop of a 5-day support package per annum. It is not lost on me that she is based in a high clinical care needs area and that will pose a staffing challenge at any time.It should not be insurmountable ,

I can predict potential serious challenges to the claimant’s rest time if this issue remains live and un- resolved. The attendance requirement and the travel time necessary to get to Dublin, where meetings are held is a major commitment. I accept that the claimant wishes to action this commitment but It should not be to the detriment of her personal time.

I was struck that all discussions and deliberation on the claim for 20-day special leave were localised to the Hospital Executive and nobody had reached out to the main funder with a business case or proposal. I appreciate that it is a “ first time “ challenge for the parties .However, I saw provision for Leave for Jury service in the staff handbook and should imagine that this also would present as an occasional operational challenge .

I appreciate that the Employer submitted that they have found it impossible to secure “top up “funding for any initiative in the past, and I understand that they remain apprehensive and cautious about meeting the challenge of this claim.

I have identified an Administrative lag in the 1981 and 1984 Circulars and the Section 39, Health Act 2004 status relied on by the Employer.

It is clear in the body of the Health Act 2004 that the same Department of Health funds HSE and Section 39 facilities and it seems that the Circulars presented by the Union and opposed by the Employer may have laid dormant in the large scale transfer of Health Services in 2004 .I could not establish if any attempt had been made at national level to relaunch or remodel these Circulars as the National Governance evolved .The Rights Commissioner Recommendation of 2011 presented at hearing suggests not .The Employer confirmed that it was a participant in the recently resolved National Dispute in Section 39 facilities .I am satisfied that the Employer functions and actively participates   in the Public Health Service .

I have considered the Employer Staff Handbook and I observed a cross reference to Temporary Rehabilitation Pay, Critical Illness Policy, HSE Circular 25/2008 as operational in the Employment. These are mirrored at the HSE. I note that Section 14 on Time Off for Union work is an edited version of both Circulars relied on by the Union. I note that public sector pay rates are paid at the facility.

I have read both Circulars directed at Health Boards and Voluntary Hospitals relied on by the Union. I explored with the Employer whether they were affiliated with any national governance group? to be told they were a standalone Section 39 Facility. Yet, Section 39 is a National Model of Governance under the auspices of the Minister for Health.

I could not identify any reason for a variance in granting special leave for “Non- Full time Union Representatives “in HSE and Section 39 Facilities. Both representatives have a major role to play in support of their respective constituents in Industrial relations. Both services are funded by the same Department of Health from where S146/11 and S146/11 (1981 and 1984) emerged. Both Management Teams are also funded by the same Department.

In my opinion, it  would be divisive and partisan to distinguish between Union National Executive Members who originate from HSE and Sec 39 facilities, given that Section 39 funded entities seem to be a by-product of the Health Act 2004 from where the HSE emerged. I find that the Circulars have direct relevance and application to the Claimants case and should be activated in this case.

I see no merit in the argument that the Union should pay the claimant for her special leave. The Union is not the employer. I canvassed the party’s views on whether they saw any benefits flowing from hosting a National Executive Member in the Hospital? The Union presented a very insightful response and the Employer presented as overwhelmed and under supported on meeting funding and service imperatives.

The Employer submitted that the service could not release the Claimant from service delivery. The Director of Nursing outlined her professional concerns at the hearing. While I understand these concerns, I am adjudicating on an Industrial relations claim and can only make a recommendation under that umbrella. I note that the circulars provide for ample protection on service exigencies and it may be of benefit for further collaboration here.

Finally, I found that the Employer has not taken the opportunity to explore the benefits of having a Union National Executive member on site. I would like to see more collaboration between the parties in that regard. While I noted that the Hospital confirmed that they welcomed visitors to the facility, they had not appeared taken the time to explore the potential benefits of two-way travel in that regard to showcase their own highly regarded Health Care Facility.

I have found merit in the Dispute and conclude that the claimant is entitled to the benefits of the Circulars and she should be granted access to the 20 days special leave per year to attend Executive Meetings for the duration of her elected tenure.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found merit in the Dispute and I recommend the following course of action to the parties.

1. The Claimant is provided with immediate 20 day special leave for Executive Council attendance in accordance with the National Circular S146/11. This is separate to the time allowed for local Nurse Representative work.

2. The 8 days already passed to be returned as Time In lieu to be taken by agreement.

3. That the Employer immediately seeks a retrospective and prospective funding amendment to the Service Level Agreement to accommodate the claimant’s attendance at Union Executive for 2018, 2019 and 2020 or for the duration the Claimant serves on the Executive. Any residual issues should be raised at National Joint Council for the Health Services in accordance with the Labour Court recommendation LCR20510.

4. That the Claimant undertakes to share   frequent updates directly relating to her work on Executive, which may benefit the Hospital   with her Hospital Executive Management.

Paid time off for attendance at Union Executive Meetings in Dublin.