Worker

Employer

Anonymised Parties

A Psychiatric Nurse

A Public Service

Representatives

Peter Hughes Psychiatric Nurses Association

Eamon Ross Employee Relations Department

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-00043020

12/03/2021

The worker is a psychiatric nurse and works from a community mental health centre.  The worker is paid by a public voluntary hospital. The worker outlines that she should be classified as an employee of the public service for the period between 1993 and 2014; the employer (the public service) does not accept this. In the background of this dispute is that if the worker is classified as an employee of the public service who commenced prior to 2004, it may be that she ought to be registered for fast accrual superannuation per the Mental Treatment Act 1945.

The worker outlined how she had trained as a psychiatric nurse between 1984 and 1987 in the public service.  She outlined how she initially undertook a six-month placement in Ireland before moving to the UK.  She returned form the UK in 1993 to interview for roles in a public service role. She was offered various roles and she selected the named public voluntary hospital. The worker was not informed of the impact of this choice, as opposed to working for the public service directly. She started work in January 1994 but was not issued with a contract of employment for several months.

The worker said that in 1997 she became a community mental health nurse. The public voluntary hospital does not provide community mental health services and the worker was fully integrated into the public service. She was made permanent in the role in 2000. She did not receive a contract for this position.  The worker said that the only interaction she had with the public voluntary hospital was that she was paid monthly by them.

The worker did not accept that this dispute related only to pensions, as she had also received different treatment while in employed. The worker said that at the time she started the community role, she would have selected the predecessor of the public service, had she been aware of the impact of the choice.

The worker acknowledged that there are other employees who are in a similar situation.

The employer outlined that this was not an individual claim and could not be dealt with on an individual basis. It referred to the recommendation in LCR 15647, where the Court had refused jurisdiction as this was a pensions issue. Given these issues, the employer outlined that a referral to the Pensions Ombudsman was the best approach.

The employer outlined that the fast accrual scheme was governed by strict conditions and there was an internal appeals mechanism.  The employer outlined that many nurses are employed by hospitals and there is no difference between them and employees of the public service. The difference here is the fast accrual available for certain workers and this is best dealt with by the Pensions Ombudsman.  The employer outlined that it was unlikely that it would implement any recommendation along the lines sought by the worker.

The employer outlined that the worker not getting a contract of employment did not mean that there was no contract of employment. The public voluntary hospital paid the worker’s wages, and they were her employer. This was not unusual for nurses employed by a section 38 provider.

The employer accepted that the worker had an issue that needed to be dealt with but that it could not be addressed before the Workplace Relations Commission, and it suggested the Pensions Ombudsman. The employer noted that similar cases have been adjudicated in recent months and that adjudicators have found these issues to be pensions issues that cannot be dealt with under the Industrial Relations Acts.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.   In addition, the parties indicated that these matters were in the process of being considered by other adjudicators and referred to the case of A Psychiatric Nurse and a public service, ADJ-00032339.  It was indicated by the employer that although the recommendation had not issued as at the date of the hearing, any recommendation in that dispute would have relevance as the issues were similar.  The worker/union agreed that this was the case.  ADJ-00032339 has since been issued and very instructive in considering this recommendation.  Accordingly, in relation to those aspects of the dispute that are identical, and where my findings are similar, I have adopted the same or similar wording to the Adjudication Officer, Mr Baneham in ADJ-00032339.

The worker commenced as a psychiatric nurse briefly in 1987 in the public service before returning to take up a position with the named public voluntary hospital in November 1994. In March 1997, she commenced the community mental health role and was made permanent in this role in 2000. She is fully integrated into the public service; she works from a community health facility operated by the public service. She reports to a named manager, an employee of the public service. She provides care to patients of the public service and records their information on files owned by the public service. She has been provided with an ID badge, keys, fobs, laptops, a computer and a phone by the public service. The worker was paid by the public voluntary hospital, and this was now her only interaction with it.

Fast accrual

Section 65 of the Mental Treatment Act provides for the registration of officers and servants of mental hospital authorities and allows an employee to refer a dispute to the Minister for Health if they are not so registered. Section 66 provides for more beneficial superannuation terms for registered employees and reflected existing bespoke superannuation provisions for employees, for example the Asylum Officers’ Superannuation Act 1909. Section 65 was amended by the Mental Treatment Act 1961. As of the 25th of March 2004, section 65 fast accrual was not available for new entrants in psychiatric nursing even where they worked in a ‘mental hospital authority’ which required registration (section 12 of the Public Service Superannuation (Miscellaneous Provisions) Act 2004).

In LCR 15647, the Labour Court considered a claim from psychiatric nurses employed by the public voluntary hospital and whether they should be brought into line with the pension scheme for psychiatric nurses employed by the public service. The Labour Court concluded that it could not recommend the claim because of the Mental Treatment Act 1945 and the ongoing work of the Commission on Public Service Pensions (referenced in Partnership 2000).

A claim involving a body of workers?

The employer outlines that no recommendation should issue as the claim relates to a body of workers.  It indicated that Section 13(1) of the Industrial Relations Act provides “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].”

It is clear from the above definition that a claim in respect of rates of pay, the hours or times of work or annual holidays of a body of workers are not within the scope of section 13. It is also clear that other disputes are within the scope of section 13, even if they affect more than one worker. In fact, the above definition explicitly refers to a party (singular) being able to refer a dispute where a trade dispute involves ‘workers’ (plural).

This dispute does not relate to the rates of pay, the hours or times of work or annual holidays of a body of workers. This dispute relates to the worker’s employment status and who is her employer. While the union has advanced the case of colleagues of this worker, including seeking conciliation via the Workplace Relations Commission, this does not make it a dispute by a body of workers that is outside the scope of section 13. It would only be outside the scope of section 13 if it related to rates of pay, the hours or times of work or annual holidays of a body of workers.

Application of section 13(3)(b) of the Industrial Relations Act?

Having regard to the submissions of both parties and bearing in mind the conclusions of the Adjudication Officer in ADJ-00032339, I find that section 13(3)(b) of the Industrial Relations Act does not apply in this instance. I note that the Labour Court recommendation in LCR 15647 issued on the 23rd September 1997 and addressed the union’s claim that the superannuation scheme available to psychiatric nurses employed by the public voluntary hospital be improved to that of the Local Government Superannuation Scheme.

I similarly note that the subject matter of the current dispute is different to the claim in LCR 15647. The current dispute relates to the worker’s contention that she was an employee of the public service for a specific period. The recommendation in LCR 15647 addressed whether the superannuation scheme in the public voluntary hospital should be improved. This is not something the worker in this case is seeking to achieve.

Definition of ‘worker’

The term ‘worker’ is defined in section 23 of the Industrial Relations Act 1990 and the definition is applicable across the Industrial Relations Acts. The section provides:

‘In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means a member of the Garda Síochána referred to in subsection (1A) and any person aged 15 years or more who has entered into or works under (or, where the employment has ceased, worked under) a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include [civil servants and teachers].’

It is not in dispute that the worker is now an employee of the public service; the dispute is whether the worker should be classified as an employee of the public service back to 1994 or perhaps 2000. As noted in ADJ-00032339, it is not uncommon to have to adjudicate whether a person should be classified as an ‘employee’, a ‘worker’ or an independent contractor. This is most often required in employment rights cases, say a Terms of Employment (Information) claim. This is not an employment rights claim; it is a dispute per the Industrial Relations Act, which seeks to progress matters for parties and not to narrow their options. Given the longstanding relationship between the worker and the public service in this case (whether or not it was an employment relationship) and the fact that the worker is certainly now an employee of the public service, I agree with the conclusions of Mr Baneham in ADJ-00032339 in that it would be unhelpful to narrow the parties’ options were I to make a recommendation that ‘decided’ the employment status question prior to 2014.

Recommended course of action

This adjudication was held against the background of an evolving relationship between the worker and the public service. The public service is taking over the services of the public voluntary hospital, including the payment of the worker’s salary. It has provided a draft contract of employment for the worker to sign. What is, in effect, in dispute is the start date of that employment, the worker saying 1994 (or perhaps 2000) and the employer, 2014.

Irrespective of whether or not the worker was entitled to call the public service her employer prior to 2014, she certainly can now. The employer emphasised that while the claim should not be conceded before the Workplace Relations Commission, there was an issue to be addressed.

As in ADJ-00032339, I note the approach of the Labour Court in LCR 22476 where the Court held that whether a worker ought to have been registered per section 65 of the Mental Treatment Act is not an industrial relations matter. It held that any grievance by a non-registered employee should be referred to the Minister for Health per section 65. I follow this approach in this case. The question of whether the worker should be registered for fast accrual under section 65 is not a matter for this adjudication.

Although LCR 22476 was not opened directly in the instant hearing, it was referred to and accordingly, I find the approach of the Labour Court in that instance to be instructive.  The Labour Court recommended further engagement by the parties, and along similar lines to ADJ-00032339, I also recommend that the parties engage further in respect of the worker’s claim. I note that this relates to the worker and a small group of colleagues, i.e. psychiatric nurses who were employed in the late 1990s (and before 2004) by the public voluntary hospital but based in community mental health services operated by the public service. In respect of the particular circumstances such as those of the worker, I recommend that the parties agree a process, for example involving an independent decision maker, to consider the situations of individual employees on their merits and decide their claims within the ambit of the agreed process.

Industrial Relations Act – ‘Body of Workers – Psychiatric Nurse – Mental Treatment Act