Complainant

Respondent

Anonymised Parties

A Psychiatric Nurse

A public service

Representatives

Psychiatric Nurses Association

Employer Relations Department

Act

Dispute Reference No.

Date of Receipt

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

CA-00043018-001

12/03/2021

The worker is a psychiatric nurse and works from a community mental health centre. Until 2022, the worker was paid by a public voluntary hospital. The worker outlines that she should be classified as an employee of the public service since 1997 or 2000; 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 she should be classified as a nurse of the public service since the day of her commencement. She had trained as a psychiatric nurse and was appointed to a community 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. The worker said that she was not issued with a contract of employment. The worker said that she had always considered herself to be a loyal employee of the public service.

The worker said that 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. The worker said that the only interaction she had with the public voluntary hospital was that she was paid monthly by them. The worker said that she was on the Community Mental Health Pay Scale, the same scale as an employee of the public service.

The worker did not accept that this dispute related only to retirement, as she had also received less benefits while in employment. She cited not getting funding support for postgraduate education in 2006, as well as study leave and time off for the exams. She had to use the occupational health scheme of the public voluntary hospital and not that of the public service.

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. She would have obtained a contract from the public service as all its staff are employees.

The worker outlined that she was never contracted with the public voluntary hospital and was promoted to the permanent role. She outlined that she should, therefore, have the benefit of section 65 of the Mental Treatment Act and fast accrual. The worker outlined that she should be encompassed by the Local Government Superannuation Scheme and not the Voluntary Hospitals Superannuation Scheme. She distinguished ADJ 32679 and 32680 as the claimants in those cases had retired.  

The union outlined that it had made a submission to the Commission on Public Service Pensions. The Labour Court previously made reference to referring a case to the Commission on Public Service Pensions, but this was not addressed in the Commission report. The union outlined that the Labour Court recommendation was never implemented. The union outlined that the 2004 Act represented big change. The union distinguished the Labour Court recommendation in LCR 22476 which related to psychologists who were never comprehended in fast accrual.

The worker outlined that the letter from the public service referring to the right to section 65 fast accrual was a matter of contract. She asked that she be declared an employee of the public service since either 1997 or 2000, and any pension issue could be addressed later. She outlined that the public service is now taking over all services of the public voluntary hospital and so she was offered a contract of employment, dated 1st February 2022.

The employer outlined that the worker was not its employee until she transferred in 2022. It outlined that some psychiatric nurses had the benefit of the fast accrual, but the named public voluntary hospital was not covered by the section 65 scheme.

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 and LCR 22476, 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. It referred to the recommendations issued in ADJ 32679 and ADJ 32680. It submitted that this recommendation was correct and that it applied not just to employees who had retired but to those still in employment, such as the worker. The employer also relied on section 13(3)(b) and the previous decisions of the Labour Court.

The employer was not aware whether the study support issue had been raised with management previously and outlined that this occurred a long time ago.

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 and that they would appeal.

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 worker commenced as a staff nurse with the named public voluntary hospital in November 1996. 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 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). This was the Labour Court recommendation relied on in ADJ 32679 and ADJ 32680 in invoking section 13(3)(b) of the Industrial Relations Act 1969.

In LCR 22476, the Labour Court made no recommendation regarding the interpretation of the Mental Treatment Act 1945. It recommended that the claimants, psychologists, pursue their claim nationally for fast accrual outside the provisions of the 1945 Act.

In ADJ 32679 and ADJ 32680, the adjudication officer held that the claims were subject to a previous recommendation of the Labour Court, so the adjudication officer did not have jurisdiction to hear the claims per section 13(3)(b) of the Industrial Relations Act.    

A claim involving a body of workers?

The employer outlines that no recommendation should issue as the claim relates to a body of workers.

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?

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 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 is an employee of the public service. 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” meansa 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 1997 or 2000. 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 am of the view that it would unhelpfully narrow the parties’ options were I to make a recommendation that ‘decided’ the employment status question prior to 2022.

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 1997 or 2000 and the employer, 2022.

Irrespective of whether or not the worker was entitled to call the public service her employer prior to 2022, she certainly can now. The worker emphasised her longstanding and loyalty to the public service. The employer emphasised that while the claim should not be conceded before the Workplace Relations Commission, there was an issue to be addressed.

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.

I also note that in LCR 22476, the Labour Court recommended further engagement by the parties, and 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.

CA-00043018-001

In respect of the particular circumstances such as those of the worker, I recommend that the parties engage further to agree a process, for example involving an independent decision maker, to consider the situations of the individual employees on their merits and decide their claims within the ambit of the agreed process.

Industrial Relations Act / status of ‘worker’ and ‘employee’

‘Body of workers’

Psychiatric nurse / Mental Treatment Act