Complainant

Respondent

Anonymised Parties

A Doctor

A Hospital

Representatives

Irish Medical Organisation

Act

Dispute Reference No.

Date of Receipt

Section 13, Industrial Relations Act, 1969

CA-00044052

This is a dispute arising from the application  of incremental credit to a NCHD who had previously worked abroad.

Incremental credit for NCHDs is awarded in line with section 16 of the NCHD contract andDepartment of HealthCircular 10/71.There are some specific provisions outlined for incremental credit at the Senior HouseOfficer (hereafter, SHO) and Registrar level. They are set out in a national agreement; the2010NCHDcontract,section16.

As per section 16 (b) an NCHD will not be regarded as having experience as a Registrar     unless they have worked for at least three months in the role undertaking the full scope of Registrar duties.

As per section 16 (b), In relation to the appointment of a doctor to the post of Registrar, they should have at least twenty-four months post qualification (completion of internship) experience before being eligible for such an appointment.

Section 16 (c), provides that, an NCHD who takes up appointment as a Senior House Officer having previously held a Registrar post will be placed on the equivalent point of the SHO salary scale.

In section 16 (g), an NCHD who was employed in a state (other than an EU member state) prior to taking up appointment in Ireland may be granted incremental credit where the experience was obtained in a recognised teaching hospital. Satisfactory evidence must be provided by the NCHD.

Where such a determination is in dispute, a tripartite committee of the IMO, HSE and DoH will consider the evidence in a similar fashion to questions regarding pre-internship qualifications.

The IMO attempted to engage with the tripartite committee which was at a disagreement as to how to proceed. It was agreed that any cases which had already been referred to the committee would be reviewed by the Consultant & NCHD Industrial Relations Director of the IMO and Assistant National Director for HR of the HSE.

As these meetings have not been scheduled, despite the efforts of the IMO, the matter was referred to the WRC.

The complainant completed his internship in July 2018. From August 18th, 2018 until March 9th, 2020 he was employed by a health board in New Zealand. (Details were submitted).

The complainant returned to Ireland and commenced as an SHO in the hospital on July 13th, 2020. Upon his return he was remunerated on point 2 of the SHO salary scales and advised that he could advance to point 3 in February 2021, counting his registrar experience. This is contrary to section (b), (c) and (g) of the contract.

In November 2020, the complainant raised this with the IMO which advised that as he had over three months of experience as a Registrar in a recognised teaching hospital he should be remunerated on point 5 of the SHO salary scales in accordance with the NCHD agreed contract.

In December 2020, the IMO followed up regarding the complainant ’s incremental credit. which advised that his Registrar experience abroad would not be recognised because “he had insufficient experience as an SHO to claim entitlement to same”.

On December 17th, 2020, the IMO requested that the hospital refer the matter to the incremental credit committee for review and followed up to try and schedule incremental credit committee meetings, but due to a lack of engagement the IMO submitted this complaint in May 2021 and notified the hospital.

On October 12th, 2021, nearly a full year after raising the issue with his employer, the IMO met HSE Corporate Employee Relations to clarify some of the issues on the application of incremental credit. The HSE position was that the role of Registrar is distinctly different from that of an SHO and would need to be assessed carefully. The IMO drafted a proposed form for supervising Consultants to review the experience gained abroad.

A second meeting took place on November 9th, 2021 but the HSE refused to review the cases already referred and suggestions were made regarding the review of Registrar experience. These suggestions were put in writing to the HSE to confirm their agreement before formally proposing the changes.

The IMO has unsuccessfully tried to schedule a meeting to review the cases already referred. Our member should have re-joined the HSE on point 5 of the SHO scales as per section 16(c) of the contract and his increment date should be July. Therefore, he should have been point 5 in July 2020 and point 6 in July 2021. Instead he has been at point 2 in July 2020, point 3 in February 2021 and point 4 in February 2022.

The IMO submits that section 16 (b) of the agreed contract states NCHDs should have 24 months experience, not must. The complainant, under section 16(c) having taken up appointment as a Senior House Officer having previously held an appointment as Registrar is contractually entitled to be remunerated at the equivalent point. That is, point 5 of the SHO salary scales.

In accordance with section 16 (b) and (g), our member is entitled to incremental credit for Registrar experience, as he worked for over three months as a Registrar in a recognised teaching hospital other than in an EU state.

The IMO recognises our role in the contractual entitlement under section (g) and have tried to engage meaningfully on a number of occasions. This is evidenced by correspondence in and draft form in appendix E and F.

In his claim form to the WRC the complainant alleges that he has been denied recognition of experience for incremental credit purposes, which is set out in section 16 of the national NCHD Contract.

The respondent submits that this is an issue relating to the national NCHD contract. There are established mechanisms in place at national level for the IMO to raise such issues with the Department of Health and the HSE.

That said the respondent rejects the claim and says that concession of the claim would have collective implications nationally for how the NCHD Contract is applied. The relevant legislative and contractual provisions were complied with in relation to the complainant.

Regarding whether the hospital is the correct respondent the hospital is a separate legal entity to the HSE, and while it is bound by HSE policies and procedures, it is an employer in its own right. In the complaint form it is asserted that the HSE is the Head Office. This is factually incorrect.

Therefore, the issue raised by the complainant is fundamentally a national issue to which there is currently engagement between the IMO, the Department of Health and the HSE. The respondentl is not directly a party at these national level talks.

All variations to the national NCHD contract are negotiated between IMO, TheDepartmentofHealthandtheHSE.TheHospitalcannotdeviatefromnationallydetermined policy pertaining to NCHD contracts and it has been confirmed by the HSE thattheapplication, as inthis case, is appropriate

The typical career trajectory for NCHD’s is prescribed by both the Irish Medical Council andRoyal College of Physicians in Ireland.

Upon completion of a medical degree (Step 1), all NCHDs must complete a 12-month Internship, (Step 2), before they are eligible to be placed on the General Register of the Irish Medical Council. Following their Internship, NCHDs will work for at least two years (and potentially three) as an SHO in order to complete their Basic Specialist Training (BST) in either Medicine or Surgery (Step 3).

BST in medicine is a two-year scheme wherein the SHO will rotate through eight different specialities. This ensures that the SHO gains a full range of experience across general medicine in order for them to be suitably trained and be independent enough to progress to the more senior leadership role of Registrar or Specialist Registrar post (Step 4).  

Within this period of twoyears, it is expected that the SHO will successfully pass their membership exam, the MRCP(Membership of the Royal College of Physicians in Ireland).Completing the BST programmeand achieving the MRCPI exam are mandatory requirements in order to be eligible to applyfor a Higher Specialist Training Programme i.e. to become classified as a Specialist Registrar(Step 4).

The same eligibility criteria are required for Registrar appointments however it is not unusual for employers to promote SHO’s to Registrar appointments after two years training in the absence of their MRCP.

The Hospital has approximately 424 full time NCHDs in post, 65% of which are training                                     posts, with NCHDs being allocated to the hospital from a college training scheme (RCSI Internship, BST, HST, etc). Of these 424 posts, 126 are SHOs and 227 are Registrars/Specialist Registrars. All 227 WTE Registrars and Specialist Registrars have completed 24 months post-internship training.

The Hospital sets a high standard of BST for its medical SHOs, and it is ranked number one in SHO preferences for training. The respondent’s trainees have a 100% pass rate for their MRCP exams, having gained valuable experience across the core specialities.

Upon commencement, the complainant was paid on the 2nd point of a seven-point SHO salary scale, effective from July 13th, 2020 with an increment date of January 4th, 2021. This assimilation considered his 18.5 months experience post Internship in New Zealand of which, 12 months of service was at SHO level.   Having been granted the incremental credit for the totality of his experience abroad, he progressed to the 3rd point of the SHO salary scale i.e. €50,255.   the complainant ’s contracted working hours were 39 per week.

On 11th November 2020, the complainant requested that his application be referred to theNCHD Incremental Credit Committee(comprising of the IMO, Department of Health andHSE) for review.It was confirmed with him on November 19th, that the Hospital hademailed HSE Corporate Employee Relations (CERS) to seek clarification on his claim and theawardingof incrementalcredit

On November 30th, 2020, the complainant sought an update and was advised that the respondent had not heard back from HSE CERS but had been in touch with HR Managers in other Hospitals to check its interpretation of the contract and established that what it was doing was in line with elsewhere.

On December 11th, 2020, the hospital responded to the IMO a reiterating that the case had been referred to the Incremental Credit Committee, and an update was awaited.

On December 23rd, 2020, additional information provided by the complainant was submitted by the respondent to HSE CERS for consideration by the Incremental Credit Committee. Follow-up requests for updates were made by the respondent to HSE CERS in February, March and May.

The respondent was notified on 13th May 2021 that the complainant had made a referral to the WRC for adjudication in respect of the present issue under Section 13 of the Industrial Relations Acts, 1969. The referral to the WRC was surprising given that the complainant had not utilised, let alone exhausted internal Hospital grievance procedures regarding his issue.

Incremental credit is granted to the NCHD in respect of previous employment as an NCHD in Ireland or an EU member state in the public serevice, including periods spent in a recognised training post; and periods spent employed by an agency and assigned to the public health service for periods in excess of two consecutive weeks. For periods spent employed by an agency there is a limit of one incremental point of progression irrespective of the number of periods or duration of same.

Time spent gaining a graduate qualification (prior to completion of internship) in the health sciences subject to a limit of one incremental point of progression for any such qualification.

Time spent out of a substantive post while gaining a postgraduate qualification (post completion of internship) provided that during such time (s)he was actively engaged in clinical and/or relevant public or private hospital work (whether as part of or separate to the qualification); in a vocational training scheme for general practice; or working as a university lecturer, tutor or demonstrator and subject to the provisions of the Public Service Stability Agreements.

In relation to the appointment of a doctor to the post of Registrar, he /she should have at least 24 months post qualification (completion of internship) experience before being eligible for such an appointment.

An NCHD will not be regarded as having incremental credit or previous experience at Registrar level unless they have worked for at least three months in a role which requires them to undertake the full range of duties associated with a Registrar post.

An NCHD who takes up appointment as a Senior House Officer having previously held a Registrar post will be placed on the equivalent point of the SHO salary scale. Periods spent in vocational training schemes for general practice are reckonable for incremental credit. Locum NCHDs shall be granted incremental credit on the basis of previous recognised hospital experience.

An NCHD who was employed in a state (other than an EU member state) prior to taking up appointment in Ireland may be granted incremental credit where the experience was obtained in a recognised teaching hospital. Satisfactory evidence of same must be provided by the NCHD.

Where such a determination is in question, a tripartite committee of the IMO, HSE and DoH will consider the evidence in a similar fashion to questions regarding pre-internship qualifications.

The above-mentioned contractual terms provided the basis upon which the respondent applied its determination of the complainant’s entitlements under incremental credit priorto hiscommencement.

The complainant had worked for 12 months as an SHO before he was appointed to a Registrar post in New Zealand. In accordance with the Irish NCHD contract, the Hospital did not recognise the post for incremental credit purposes on the Registrar pay scale, as the complainant had not worked the requisite 24 months as an SHO prior to taking up the role.

Rather, the respondent awarded the complainant 18.5 months incremental credit on the SHO salary scale for the time he worked in New Zealand from August to December 2019 and March to June 2020, thereby bringing his increment date forward on the SHO salary

Completing the BST programme and achieving the MRCP exam are mandatory requirements in order to be eligible to apply for a Higher Specialist Training Programme i.e. to become classified as a Specialist Registrar (Stage 4).

The first 3 points of the Registrar salary scale are equivalent to the last three points, (5th, 6th & 7th), of the SHO scale.   Accordingly, if an SHO has completed 24 months post-Internship and is promoted to a Registrar post for three months, they are placed on the 1st point of the Registrar scale, (€58,567). If after 3 months, the NCHD reverts to an SHO post they are placed on the equivalent point of the scale, i.e. SHO5 (€58,567), whereas if they had remained in an SHO post after the initial 24 months they would only have progressed to SHO3 (€51,772).

This claim is similar to a number of parallel claims which are being advanced simultaneouslyby the IMO in relation to the interpretation of incremental credit provisions which are atdisputewiththeHSEandemployerrepresentatives.

Accordingly, the dispute is fundamentally a national issue that is subject to ongoing engagement between a tripartite committee of the Department of Health, HSE and the IMO, on behalf of NCHDs. Agreed outcomes from such national engagements and associated national circulars cascade for implementation by hospitals locally. Where queries arise, these are clarified with the HSE.

The respondent says that it has correctly and appropriately applied the terms of the contractual provisions relating to incremental credit for NCHD’s and he approach taken by the hospital in this instance is consistent with that taken in relation to the award of incremental credit for all other NCHDs. It is also consistent with the approach taken in other hospitals and has been endorsed by the HSE.

The complainant did not have twenty-four months post Internship experience, so therefore was deemed ineligible for incremental credit as a Registrar. The hospital did however award incremental credit on the SHO scale to recognise time spent working in New Zealand, having verified that the complainant had worked in a recognised teaching hospital.

Concession of this claim will fundamentally deviate from historic and established. practice with significant collective and retrospective implications, not alone withinthe respondent hospital, but across all hospitals within the HSE.

To place matters in perspective, over the past 10 years, 2851 Irish trained doctors emigrated to the Australian continent; 995 doctors have emigrated from 2019 to 2021 alone. To award incremental credit at Registrar level to each of these doctors without having completed the required 24 months post internship prescribed in the NCHD contract, has the potential to give rise to considerable cost increasing implications for the respondent hospital and the broader HSE. In this specific case, the salary cost implications alone amount to €10k.

Such claims are contrary to Section 5.6 of the current Public Services Agreement (Building Momentum).

The awarding of incremental credit in the manner sought (i.e. as a Registrar) would disadvantage those NCHD’s who have remained in Ireland fulfilling their obligations under a recognised training scheme, i.e. rotating through core specialities over a 24-month period. All things equal, the Complainant’s case, as presented, promotes entitlement to a higher salary relative to peers.

Section 16 (b) indicates that an NCHD should have completed at least 24 months post-registration experience prior to progressing to Registrar level. The complainant completed 12 months post-registration experience. Any reliance placed on the use of the term ‘should’ as opposed to ‘must’ requires to be viewed in the context of the   original stipulation of 36 months in a previous iteration of the NCHD contract and other exceptional circumstances which the salient provision seeks to address.

In the Irish Health Service there is a standard career structure for non-training and training positions. The awarding of incremental credit is grounded on this. There are different training pathways for doctors in different jurisdictions, and in this instance, referring to experience in New Zealand is not comparing like with like.

It is a prerequisite that all Medical Registrars in the respondent Hospital, and elsewhere within the HSE.

There are a number of issues arising in this case.

The first, and most obvious concerns what is the correct interpretation and application of a national agreement in respect of assimilation on to Irish pay scales of doctors who had been working abroad.

The key element of this (in this case) arises where a doctor has achieved registrar status in a manner that falls below the requirements of the Irish assimilation process, although this aspect of the matter, while central was buried in the submissions in a great degree of other detail.

The second, and in this case more important issue is in two parts and arises from how the Adjudication service of the WRC (and its predecessors) approach complaints of this nature.

One of these parts is procedural and the other is substantive.

In respect of referrals under the Industrial Relations Acts the ‘jurisdiction’ is essentially that of individual rights (as expressed in the name of our predecessor adjudicators; the Rights Commissioners.)

Very specific exclusions (in the statute) from that jurisdiction include disputes ‘connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers’.

It will be clear from this that while a dispute over the pay of an individual worker may (with the agreement of the employer) find its way to adjudication under this Act it could not deal with general pay claims or the like.

Quite clearly in this case the Adjudicator is being asked to determine a matter which would set an interpretation to be followed throughout the Irish health service, and well beyond the current complainant.

It is worth noting here that the fact that established arrangements for addressing the issue have so far failed to do their job is a matter of concern and that leads me to the final consideration.

Although not referred to specifically in the legislation it is a cardinal principle of the approach of both the WRC (and its predecessors) and the Labour Court that they will not intervene where local, (or in this case national) but in any event the proper workplace procedures have not been fully utilised and exhausted.

There are good reasons for this; a general consideration that issues should be resolved at the level of the workplace (and as in this case) a specific one that where a degree of specialist expertise in the subject matter is an advantage then those people with that expertise are the proper ones to address and resolve it.

Ultimately should they try and fail, (and including, should they fail to try), a party may, subject to the criteria set out in the Act come to the Adjudication Service or the Labour Court for a remedy.

I note that there has been a degree of delay in addressing the case, although that raises another issue which was referred to by the named respondent in this case.

Of course, the respondent hospital is the complainant’s direct employer, but the complainant’s trade union in particular will have an intimate familiarity with the practical politics and procedures of health service bargaining on pay. They know better than anyone that no individual agency is permitted ‘solo runs’ on such matters even if it was disposed to do so (which in this case it clearly is not.)

So, while there may have been some tactical aspect to its referral to the WRC it requires greater application and persistence within the health service system to get a determination and resolution of the matter. This means initially the tri-partite committee referred to above.

I will recommend that the complainant renew his approach that committee which should convene (online or in person) within four weeks of that approach to consider the matter. The complainant is entitled to a hearing of his case on the basis of its own facts.

It is not sufficient that his direct employer be advised of a ‘correct’ interpretation of the regulations as a means of disposing of it. Why bother with a tripartite committee at all if that were to suffice?

It should issue a written reasoned determination on the complainant’s claim for incremental credit no later than six weeks after the date that contact.

I recommend that the complainant renew his approach to the Tripartite Committee charged with considering these matters and as referred to in the submissions above.

That Committee should convene (online or in person) within four weeks of receiving that approach to consider the matter. The complainant is entitled to a hearing of his case on the basis of its own facts and merits on a basis to be mutually agreed between the parties.

The Committee should issue a written reasoned determination on the complainant’s claim for incremental credit no later than six weeks after the date that contact.

Incremental credit, national agreement, workplace procedures.