FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : CLONTARF HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A GROUP OF NURSING STAFF (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION AND SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. Geriatric allowance, unpaid breaks, retrospection of hand-over time payment and bleeps.
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 the 8 January 2018 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 15 February 2018.
UNION’S ARGUMENTS:
3. 1. A national nursing agreement exists since 1999 which provides for the payment of a location allowance to nurses who work with geriatric patients on geriatric wards or units.
2. There is no hand-over time allocated on nights so night staff come in early for their shift.
3. Nursing staff have always been paid for the full twelve hour shift.
EMPLOYER'S ARGUMENTS:
4. 1. The facility is not a Geriatric Hospital, is not a long-stay facility and does not follow geriatric care plans.
2. The Hospital is never at full occupancy and Management has developed effective hand-over of information in a timely manner.
3. Management's proposal to revert to unpaid breaks away from the ward was resisted by night staff.
RECOMMENDATION:
There are a number of issues in dispute between the parties;
1) Geriatric allowance;2) Retrospection of hand-over time payment;
3) Breaks; and
4) Bleeps.
The Unions are seeking payment of a geriatric location allowance for nurses working on named wards within the Hospital. It is their position that from 2014 onwards two-and-a-half wards were changed from orthopaedic/interim care to geriatric /frail wards for the over 65’s. The Unions drew the Court’s attention to two circulars, Department of Health Circular 112/99 and Department of Health Circular 33/2004, which they believe support their claim for payment of the location allowance backdated to 2014.
The Employer’s position is that the Hospital is not a designated geriatric / elder care facility. The care they provide is orthopaedic and rehabilitative and aimed at getting the patient home as quickly as possible. According to the Employer the Director of Nursing was clear that neither the Hospital nor the wards in question meet the criteria for a geriatric location allowance. However, when the issue was first raised the Hospital had sought guidance from the Department of Health and had been advised that the Hospital did not qualify for the allowance. The Hospital is funded by the HSE and is not in a position to pay an allowance unless it is approved and funded.
Both parties pointed to other Hospitals that they felt supported their case. These comparators varied in size and location. It was common case between the parties that there are no national criteria set out that they were aware of that could be used to determine eligibility for the location allowance. There does not appear to be a “working definition” of a geriatric unit.
It is clear to the Court that there has been significant change in how the HSE delivers geriatric services since both the Circulars issued and that the issue before the Court could have national implications. In those circumstances the Court has insufficient information available to it to address this claim at this time. The Court recommends that the parties raise this issue at national level with a view to establishing what constitutes a “geriatric unit” for the purpose of qualifying for the geriatric location allowance set out in the Circulars.
The position of the Unions in relation to the second issue “retrospection of hand-over time payment” is that staff have had to stay on beyond their shift to complete the hand-over process. The Hospital has a clocking-in facility and can see the additional time worked. This additional time should now be credited to staff as TOIL. The Employer's position is that there is no TOIL system in place and they are not in favour of TOIL. They have looked to engage with the Unions in relation to the hand-over arrangements which stem from a previous WRC agreement and have put forward proposals in relation to staggering shifts to address this issue. However, the Unions have not engaged in relation to that issue.
Both parties confirmed to the Court that the issue of “hand-over time” going forward was part of a review process agreed under the auspices of the WRC. It appears to the Court that the issue of compensation for past flexibilities should be addressed when the review is completed and there is clarity about how the hand-over process will be dealt with going forward. The Court recommends that following the completion of the review and when there is clarity about the process going forward the parties should engage with a view to agreeing a measure of compensation for the flexibility demonstrated up to that time.
The Unions’ issues in relation to the breaks were threefold. The first issue was night duty staff being facilitated to take their breaks away from the ward. On this issue Management confirmed that they wanted staff to take their breaks away from the ward and that they believe they now have the staffing resources to facilitate this. Management indicated that they are conscious of the requirements under the Organisation of Working Time Act and are anxious that they are in compliance with same.
It is the view of the Court that it is incumbent on the Employer to ensure that staff receive their breaks in line with legal requirements. The Court recommends that the Employer puts in place the appropriate systems to ensure that this happens.
The second issue relates to an additional payment that is made to night nurses to compensate staff for taking their breaks on the ward. Management are looking to cease same on the basis that staff can now take their breaks off the ward. The Court recommends that this payment be bought out in line with the compensation terms provided for under the PSA. The Union in their submission noted that some work was being done at national level which might impact on this issue. Any issue that may arise from the national process should be taken on board at that time.
The third issue relating to breaks concerned a group of workers who rotate between night and day shifts and who ceased receiving the additional payment in August 2016. The Court recommends that that group of staff should have the PSA compensation buyout formula applied to them as if it had been applied at August 2016.
The final issue raised by the Unions concerned the carrying of bleeps by staff who could occasionally be interrupted during their breaks. The Unions were seeking that they be paid for their fifteen minute break. The Employer advised that a large number of employees in the Hospital carry bleeps and it would not be desirable nor feasible to pay for the breaks. In circumstances where a worker’s break is disturbed they can claim a compensatory break.
The Employer undertook to ensure that staff were informed how to claim a compensatory break. The Court recommends that the Employer should actively inform staff how to claim compensatory breaks should they be bleeped and required to cease their break.
The Court so recommends.
Signed on behalf of the Labour Court
Louise O'Donnell
LS______________________
26 March 2018Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Louise Shally, Court Secretary.