FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : SCOIL MOCHUA/CENTRAL REMEDIAL CLINIC (REPRESENTED BY MARGUERITE BOLGER, S.C, INSTRUCTED BY MILLLETT & MATTHEWS, SOLICITORS) - AND - TWENTY THREE SPECIAL NEEDS ASSISTANTS (SNAS) (REPRESENTED BY F�RSA) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. The duties performed by a Special Needs Assistant.
BACKGROUND:
2. This dispute concerns the toileting duties performed by the Special Needs Assistants in Scoil Mochua ("the School") who were employed before 2016.
The Unions said that the Workers have been performing their duties for the past ten to twenty-plus years without Management raising any issues about the non-performance of toileting duties.
The Employer said that the rise in complexity and severity of the students’ needs has created increased workload for the Nursing Department which in turn has reduced the amount of time available to the Nursing Department to fulfil the more basic needs of the children.
- 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 11 June 2018 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 7 September 2018.
UNIONS ARGUMENTS:
3. 1. The purpose of the SNA Scheme is to facilitate as many children as possible to access mainstream education.
2. The SNAs in the School had developed a practice of assisting children who required assistance rather than children who required fuller intervention. Such children were catered for by Healthcare and Nursing staff.
3. To change the practice to expect SNAs to cater for all the toileting needs of the children changes the terms of employment from a care role in an educational context to a care role in a healthcare context.
EMPLOYER'S ARGUMENTS:
- 1. The Employer said that it simply requires the SNAs to do tasks that are reasonably required of all SNAs who work in similar schools as has been recognised by the Department of Education and Skills in their various Circulars.
2. The SNAs employed after 2016 are fulfilling this role and the School wants to ensure equality in the workplace.
3. The increased pressure on the Healthcare and Nursing staff cannot continue.
RECOMMENDATION:
The issue in dispute between the parties is Management’s requirement that the Special Needs Assistants (SNAs) covered by this claim (twenty-three in total) carry out specific toileting duties. These duties are being carried out by SNAs recruited after 2016 and are within the range of duties of SNAs set out by the Department of Education and Skills in various Circulars. The Union does not dispute that other SNAs carry out the disputed function but it has been custom and practise in this employment that this cohort of staff do not.
Union’s case
It is the Union’s position that the work in question amounts to a change in their terms of employment. They contend that the students in question have complex toileting needs that the School and other special schools had previously identified as requiring support from Nursing staff or from Healthcare Assistants. It is the Union’s contention that the role of the SNA is to provide support in an educational context and to free up the teacher. The Union argued that the SNAs and Scoil Mochua have developed a practice of assisting children who required assistance rather than children who required a fuller intervention. It is the Union’s position that to agree with the Employer’s requirement in terms of the toileting role would fundamentally change the role of the SNA in this employment.
Employer’s case
The specific duties that the Employer is requiring the SNAs to do clearly fall within the definition of toileting as referred to in DES Circular 30/2014 and relate to catering for the toileting needs of children who fall into one of the following three categories:-
a)Children who are doubly incontinent and who require nappies;b)Children who are doubly incontinent and who require the constant or occasional use of adult continence pads; and
c)Older/larger children whose pads or nappies must be changed and who must be lifted by a hoist to either allow changing on a raised plinth or for the use of washing/toiletry equipment.
The Circular is quite clear that the role of the SNA relates to the care needs of the child and is not an educational role.
The Employer does not dispute that traditionally this cohort of workers have not carried out these duties but as the demands on the services provided by the School increase, the Employer now needs all the SNAs to carry out these duties. The Employer accepts that this could impact on some of the secondary duties carried out by the SNAs and could result in some of these secondary duties not being carried out. The Employer is happy to facilitate training if required and is prepared to consider a phased introduction of these duties.
Discussion
The Union did not dispute the fact that other F�RSA SNA members in the School are carrying out the disputed duties and that F�RSA SNAs in other schools also carry out these duties. The Union argued that in mainstream schools in general and in other special schools SNAs are not required to carry out these duties. However, they could not support that statement with any concrete examples. The Court, having read the parties’ submissions and listened carefully to the submissions on the day, notes that both parties concurred that assisting children with toileting needs was part of an SNAs duties. The fact that Workers had not previously carried out a duty cannot mean that they are permanently exempted from carrying out that duty. However, it was acknowledged by both sides that the workers in question had long service and the issue of carrying out these specific tasks had only arisen in the recent past. Initially there had been some confusion over the nature of the duties that they were being asked to carry out but this has now been clarified.
The Court taking all of the above into consideration recommends that the carrying out of these tasks for the children concerned be phased in becoming fully operational from 1stJanuary 2019. In the intervening period any training needs that arise should be addressed. In recognition of the circumstances of this case the twenty three staff who formed part of this claim should be given a tax-efficient gift voucher to the value of €400 on acceptance of this Recommendation and in any event before the Christmas break 2018 and a further tax-efficient gift voucher of €250 two months after the transition to these duties becomes fully operational.
The Court so recommends.
Signed on behalf of the Labour Court
Louise O'Donnell
CR______________________
24 September, 2018Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.