Complainant

Respondent

Anonymised Parties

A Nurse

A Health Service Provider

Representatives

Fidelma Carron SIPTU Workers Rights Centre

 HR Manager for the respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032330-001

19/11/2019

The worker works for the respondent in an area where other workers carrying out identical work receive an allowance.  She holds a nursing qualification in Intellectual Disability and her colleagues are Psychiatric Nurses.  The employer states that this allowance arose from collective bargaining and, in order to qualify, you must be both working in the area concerned and have the particular qualification

The worker commenced employment with the employer as a Community Nurse in Intellectual Disabilities in 2001 working directly with the Consultant Psychiatrist as a part of her team. This was a new role and the first nursing post in the community. The Consultant referred cases directly to the worker. From 2013 any new nurse commencing work in the MHID team has been a Registered Psychiatric Nurse (RPN). Psychiatric Nurses are in receipt of a community allowance for this work which the complainant, as a qualified nurse in Intellectual Disability, does not receive. The worker’s duties, workload and client profile are the same as the Registered Psychiatric Nurses (RPN) who receive the Community Allowance. Based on her duties and responsibilities, and the uniqueness of her role within mental health services the worker is entitled to be paid the community allowance.

The worker submitted an application for the community nurse allowance to apply to the complainant on the 24th January 2017. Her manager supported the claim. However, the application was not approved, and the matter was progressed through the internal grievance procedures.

The worker’s manager confirms that she is the only Intellectual Disability Community Nurse in the region. This situation will not arise again as since the MHID Team was established in 2013 any new Nurse commencing will be a Psychiatric Nurse.

There is one other nurse in a similar role with the same qualifications as the worker in another region of the employer and she receives the community allowance. To the worker’s knowledge there are no other nurses in the same position.

The allowance sought is the Registered Psychiatric Nurse Community Allowance.  It is an allowance payable to Registered Psychiatric Nurses working in the community.  It is not payable to Registered Nurses in Intellectual Disability.  This is the national collective bargaining position. Its origins lie in the de-institutionalisation of mental health nursing services originating with the Castlerea Formula in the late 1980s and progressing from there.

The same question of applying the Registered Psychiatric Nurse Community Allowance to non-Registered Psychiatric Nurses was considered in May 2007 by the Labour Court as part of LCR18904.  The claim was unsuccessful. 

This claim seeks to alter the collective bargaining framework of agreements in place on a matter of rates of pay and is, therefore, not properly put before the Adjudicator under Section 13 of the Industrial Relations Act.  Properly this is a matter that should be the subject of discussion and agreement between the parties at national level.  It should be noted that the most recent changes in 2019 to Nurse terms and conditions of employment agreed as a result of Labour Court recommendation did not extend the Registered Psychiatric Nurse Community Allowance to Registered Nurses in Intellectual Disability. Concession of this claim presents considerable jeopardy to the national collective bargaining framework of Nurse agreements given the inter trade union dynamic between Congress and Non-Congress Trade Unions operating in the field of Nurse industrial relations.  The claim has potential knock on effects.  Cost increasing claims of this nature are precluded under current Public Service Pay Agreement and the preceding Public Service Agreements of the last decade.

Section 13(2) of the Industrial Relations Act 1969 defines the power of an Adjudicator in relation to recommending on a dispute as follows;

(2) 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 a rights commissioner

It is clear from this section that I must limit my consideration to the applicability of the collective agreement covering the allowance to the worker.

The Employer’s position is that the allowance is based on two considerations; the nature of the work and; the qualifications of the worker. Both elements must be in place in order for the allowance to apply.  It has been the practice in the employer’s organisation to conduct separate negotiations with different unions representing different specialities within nursing and there is not necessarily any cross over of the various allowances. The terms of any agreement negotiated by one union for one category of workers do not automatically apply to another category represented by a different union. 

Neither does it appear that there is any mechanism to deal with individual anomalies that arise which can be an unfortunate consequence of a reliance on collective bargaining agreements. 

In this case the worker fulfils the requirement of one requirement to receive the allowance – the nature of the work – but does not fulfil the second requirement relating to the particular qualification deemed essential in order to receive the allowance.  Given that this allowance is covered by collective agreement I do not believe it appropriate that I recommend the extension of this agreement to a worker in a category or grade intentionally not comprehended by that agreement.

I note that the employer has stated that this is a matter which should be addressed by collective agreement and it seems to me, in light of that invitation, that this is the best course of action for the union representing the worker.

The complaint is not upheld

Industrial relations.  Application of an allowance to a particular grade