ADJ-00012919

Complainant

Respondent

Parties

Paul Murnal

Health Service Executive

Representatives

Fórsa Trade Union

The Respondent attended in person

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-00017116-001

29/01/2018

The Worker is employed by the Employer as a Dentist. This dispute concerns the non-payment of subsistence payments to Dentists and Dental Hygienists in the specific area where the Worker is based who are required to work away from their base on other Dental Clinics. Such payments are made to staff in accordance with the Employer’s National Financial Regulation Travel and Subsistence (NFR-05). The Worker contends that such payments are made to other Dentists and Dental Hygienists in other areas and to other categories of staff across the area where the Worker is based. The Worker contends that subsistence payments are made to staff who are employed on official business away from their headquarters within rates authorised by the Minister for health and Children as approved by the Minister for Public Expenditure and Reform.

The Employer strongly refutes the claim referred by the Worker.

The following submissions were made on behalf of the Worker:

·         The refusal to pay subsistence payments to Dentists and Dental Hygienists in the area where the Worker is based since 2010, in circumstances where the Employer’s National Employee Relations has clarified to local management that such payments were in accordance with the Employer’s own National Financial Regulations (NFR-05) is beyond reason. Other staff in the Dental Services in other areas of the region and other staff in other services in the region have and continue to receive subsistence payments in accordance with National Financial Regulations.

·         The Labour Court Recommendation No. LCR21156 is based on the same facts as the present dispute and in which the Labour Court held that the Workers held an entitlement to subsistence allowance in similar circumstances up until 2010 when it was unilaterally withdrawn. The Court was of the view that good industrial relations practice entails engagement between the parties before such an entitlement is withdrawn. In line with this Recommendation having been reached for Dental Nurses who work alongside Dentists and Dental Hygienists based in the Worker’s area, there are no objective grounds on which Dentists and Dental Hygienists should be treated in an inferior and inequitable manner compared to their colleagues.

·         The Employer has denied and refused to pay to Dentists and Dental Hygienists payments properly payable to them and to all other staff across the Employer’s organisation and the wider Civil and Public Service. This is grossly unjust and unreasonable.

·         Despite all attempts by the Union and the considerable measures taken including raising the issue at National Joint Council, the Employer refused and, in its view, frustrated all attempts to resolve the issue.

·         In January, 2013, the Employer advised the Worker’s Union it was not willing to reinstate payment of arrears to Dental staff on the basis there was to be a review of such allowances. It appears to the Union that the Employer was attempting to find new reasons for non-payment. The reasons put forward by the Employer at this time were challenged by the Union but no response was received to this challenge.

·         It is Union’s view that the Employer frustrated all attempts at Third Party adjudication on the issue by refusing to enter into Conciliation or to refer this matter to the Labour Court under the Industrial Relations Act 1990.

·         The Union’s Dental staff members in all other areas of the Employer’s organisation, excluding the members who are subject of this dispute, have continued to receive subsistence payments in accordance with the Regulations. For the past eight 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.

·         The Worker is seeking that the Employer reinstates the payment of her subsistence allowance in accordance with its own National Financial Regulations and that it be required to pay all arears due in their entirety.

The following submissions were made on behalf of the Employer:

·         The matter before the Adjudication Officer was raised by the Worker’s Union in March, 2017. Upon receipt of same the Employer raised the matter nationally and the issue was included in discussions between the Employer and the Union under the auspices of the National Joint Council. The matter has since progressed to separate national discussions at WRC Conciliation between the Employer and Trade Unions to ensure a standardised approach across the organisation in the knowledge that a number of various practices exist across the services.

·         The Union has sought to set aside the national process of negotiation on this matter and instead refer this issue to WRC Conciliation and subsequently to WRC Adjudication.

·         The Employer has repeatedly advised the Union that the matter is collective in nature and is appropriate to the National WRC Conciliation services and should not be dealt with in isolation of same.

·         The Union have not quantified the claim to date, however the Employer is of the position that the claim is cost increasing in nature and as such, the claim is contrary to Section 1.2.4 of the Public Service Stability Agreement (2018-2020).

·         In recognition of the National WRC discussions ongoing at this time, the Employer submits that the Adjudication Officer should await the outcome of the national discussions and defer issuing a recommendation in relation to the present dispute (and that related to the Worker’s other five colleagues).

·         Upon receipt of notification of the present dispute from the WRC Adjudication Service in correspondence dated 13 February, 2018, the Employer confirmed that it was not agreeable to the matter being investigated by an Adjudication Officer on the basis that it is currently under process nationally and on the basis that the claim has the potential to extend beyond the group of employees. In correspondence dated 5 March, 2018, the Employer advised the WRC of its objection to the matter being investigated by an Adjudication Officer. However, owing to the temporary closure of the Employer’s offices due to the adverse weather conditions, this correspondence was sent (by e-mail) to the WRC on 7 March, 2018 and therefore the objection was not received by the WRC within the 21 day time limit provided for in Section 36(1) of the Industrial Relations Act 1990. The Employer requested the Adjudication Officer to accept the objection under Section 13(3)(b) of the 1969 Act, albeit that it is outside of the time limit, and decline jurisdiction to investigate the dispute.

·         The Respondent submits that the present dispute concerns issues related to the rates of pay of a body of workers and therefore, the Adjudication Officer does not have jurisdiction to investigate the dispute under the provisions of Section 13(2) of the Industrial Relations Act 1969.

The Employer has raised a number of issues in relation to the jurisdiction of the Adjudication Officer to investigate the present dispute under the provisions of Section 13 of the Industrial Relations Act 1969.

The first issue by way of jurisdiction raised by the Employer relates to the contention that the present dispute concerns issues related to the rates of pay of a body of workers and therefore, the Adjudication Officer does not have jurisdiction to investigate the dispute under the provisions of Section 13(2) of the Industrial Relations Act 1969. Section 13(2) of the Act provides as follows:

“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to an Adjudication Officer.”

The Employer contends that the present dispute (and the identical disputes also referred by the Worker’s five colleagues) relate to the payment of subsistence allowances to Dentists and Dental Hygienists in a specific area and the claims have the potential to extend to a broader body of workers. The Employer contends that discussions in relation to the matter have commenced under the auspices of the National Joint Council and has progressed to the WRC Conciliation Services for the purpose of ensuring consistency of application of Travel and Subsistence payments to staff across the Employer’s organisation.

The Worker disputes the Employer’s position on the issue of jurisdiction. The Worker contends that the Employer has frustrated all attempts to resolve this matter and it was submitted that the Adjudication Officer is not precluded from investigating the dispute under Section 13 of the Industrial Relations Act 1969.

The Labour Court held in the case of Shannon Airport Authority -v- A Worker[1] held that: “The Rights Commissioner Service was primarily established to investigate cases of an individual character which prior to its establishment would have occupied the Labour Court’s time unnecessarily. Claims which by their very nature and character have broader implications are inappropriate for the Rights Commissioner Service and are dealt with by the Labour Court. The 1969 Act provided a stipulation that issues concerning such matters as rates of pay, hours or times of work or annual holidays are issues which can have broader implications and are consequently not issues appropriate to the Rights Commissioner Service.In all the circumstances of this case the Court is satisfied that the appeal before the Court concerns issues related to rates of pay and concerns a body of workers acting in concert. It is a claim which if conceded could potentially have broader implications for others. On that basis the Court is of the view that it is precluded by the terms of Section 13(2) of the Industrial Relations Act 1969 from hearing the case.”

I am satisfied that the present dispute relates to issues relating to rates of pay concerning a body of workers which potentially may have implications for other workers in the sector. Accordingly, I find that the issues in dispute clearly fall outside of the jurisdiction conferred upon me, as an Adjudication Officer, under the provisions of Section 13(2) of the Industrial Relations Act, 1969.  

I find that I do not have jurisdiction to inquire into the present dispute as it concerns the rates of pay of a body of workers within the meaning of Section 13(2) of the Industrial Relations Act 1969.

Industrial Relations Act 1969 – Section 13(2) – Payment of Subsistence Allowance - No jurisdiction