Worker

Employer

Anonymised Parties

Nurse Manager

Health Care Provider

Representatives

Caroline Brilly Psychiatric Nurses Association

William Toomes HSE

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001477

22/06/2023

The dispute is concerned with a claim for payment for periods of covering the duties of a higher grade from 2020 to 2023.

The worker is a CNM 11. Since 2020 he claims to have  provided over 90 days cover in each successive year for the duties which are normally performed by a CNM 111 or an ADON when on duty. He is currently working out accrued toil prior to retirement. The total period covered amounts to 2.4 years, for which he is seeking payment. Circular 017/2013 has not been implemented in the particular location as the nurses there do not want to work a twelve week night duty roster, instead of the historical six-week rota. Some of this cover follows from covering for other staffs night duty shifts. The matter was raised at local level. However, as the management do not have approval for a CNM 111 post and therefore have no vacancy, they say they cannot pay him any allowance for the work he performed. Details of the responsibility and duties the worker has covered were set out in the union submission. The members of the union in the location have expressed resistance to changing from a six week to a twelve-week roster which is linked to the creation of the CNM111 post. The union does not agree with the national HR  view that the creation of the senior staff nurse position allowed for longer periods of unpaid cover at a higher level, particularly in the circumstances which prevail in this location. The union stated they were not relying on the previous recommendation as a precedent and would not have been aware of the situation of this worker at the time when that dispute was heard.

As a term of his contract, the worker is required to do night duty. Prior to the Haddington Road Agreement, CNM 2 grades received a small stipend for night duty. That allowance ceased in 2013 with more rigorous terms put in place for payment for acting in higher post. Circular 17/2013 provided that to be paid a higher duty allowance, a CNM2 must cover a vacant higher graded post for a period of three months. In the current  case, as the terms of Circular 17/2013 were not implemented in this location, there is no funding for a CNM111 post. As such, there is and was no vacancy for the worker in this case to cover, nor was he asked to do so. The roster in the current location is a six-week roster and not the twelve-week roster provided for in circular 7/2013 as the nurses in this location will not agree to change to a twelve-week roster. The proposal put forward for the rosters would have allowed for payment of the allowance claimed in this case, but it was rejected. With the current person due to retire, the current arrangement of covering the six-week roster with on call cover by an ADON will continue and further claims can now be anticipated.

When hearing the dispute under the reference number ADJ-00026108 I was assured by management that the issue of payment for performing CNM 111 duties affected only two people. The worker in this case may be that second person. However, at this hearing it emerged that there is potentially at least one other person or will be on the retirement of the worker in this case and there was fourth person who has since moved out into the community sector. This not only brings the number within the definition of a group situation but is now heading towards establishing a precedent which will simply perpetuate an arrangement which is in conflict with a collective arrangement.  At the same time, the management acknowledge that the worker in this case, and actually and potentially others, are performing the higher-level duties described by the union in their submission. The worker is the named PIC when he is on duty. The previous recommendation was implemented by the employer as that worker was previously in receipt of the earlier smaller allowance, whereas the person in this case has not received a payment at any stage.

That the PNA has a view that the terms of that agreement did not provide for the extended roster arrangements expected by the employer is neither here nor there, at least not as far as I am concerned. What has now emerged is a situation which is a by-product of the non-implementation of that circular in this one location. And as long as there are people prepared to cover the rosters of others and to provide cover for higher duties with an expectation that they will be paid for it eventually, why would anyone on the worker side be concerned about changing the status quo. And if the management can get the job done for free why they be in a hurry to taken on the difficulties posed in the local situation. Perhaps the parties need the assistance of the employer at a higher level in discussions. Whatever the future in terms of agreements, I am satisfied that any recommendation I would make in favour of the worker in this dispute will perpetuate the current situation and lead to knock on claims. This brings the current dispute sufficiently within the classification of an issue affecting the terms and conditions of a body of workers, which cannot be decided by an Adjudication Officer under the 1969 Act. I am however mindful of the payment to one person in the same situation as this worker and the  fact that this worker has been allowed to provide cover for statutory duties and at a higher level than his pay grade for over three years. This unpaid labour situation  cannot be fair or reasonable in this case any more than it was in the previous one. The recommendation in this dispute is that the appropriate place to take account of the work performed by the manager in this dispute is in any future discussions around the implementation of circular 017/2013 in this location.

Payment for higher duties