LCR22714

1.Implementation Of Conal Devine Report

BACKGROUND:

2.This dispute could not be resolved at local level and was the subject of a Conciliation Conferences under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 14 December 2022 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 17 February 2023.


UNION’S ARGUMENTS:

3. 1. The Union claims that the 9 workers effected are being paid at the incorrect salary level.

2. The Union maintains that the Conal Devine Report recommending a higher rate of pay has been accepted by both parties but has not been implemented.

EMPLOYER'S ARGUMENTS:

4. 1. The Employer's position is that implementation of the Devine report would be contrary to the provisions of the Public Service Agreement.

2. The Employer maintains that the claim should be dealt with utilising the Sectoral Bargaining process.

RECOMMENDATION:

The issue in dispute between the parties is in respect of the implementation of the accepted outcome of a Job Evaluation carried out on the newly created role of Chief Officer. The evaluation was completed in November 2020 and the outcome was accepted by all parties at that time.

Summary of Union submission

The posts of Chief Officer of Community Healthcare Organisations were established in 2014 and there are nine posts in total. It was recognised at that time that the salary that was put in place was an interim arrangement with the proper grading of the post to be addressed in due course. Shortly after, the posts of Hospital CEO were introduced and the salary for that cohort of staff was set at €30k in excess of the Chief Officer. When these changes were taking place the then Deputy Chief Executive of the HSE stated in a memorandum that“there was a clear commitment to provide non-acute services with governance arrangements of equal weight and esteem to those that are envisaged for the acute hospital services.”The Hospital CEO’s have recently received a further pay increase that did not have to go through all the hoops that these workers are being put through, while the Chief Officers are still not being paid the agreed rate of pay for their grade.

Discussions in respect of the appropriate rate of pay for this grade have been ongoing since 2018. Towards the end of 2020 agreement was reached to have a Job Measurement exercise carried out by Mr Conal Devine an Independent HR consultant. The report from that process was issued in February 2021 and the recommendations in the report were accepted by both parties.

The Union has since then been actively engaged in seeking to have the recommendations implemented. During this period of time the Chief Officers have continued to carry out the full range of duties attached to the role despite not being paid what has been since 2021 the agreed rate for the job. They have also taken on additional work on the strict understanding that this issue would be resolved. In the run up to the extension to Building Momentum the Union sought to have two groups outstanding pay issues resolved as part of that extension, the Mc Loughlin report on behalf of pharmacists and the Devine report on behalf of Chief Officers. While clause 2.7 of the extension to Building Momentum addresses the Mc Loughlin report the Devine report was omitted and no reason for this omission has been forthcoming from the Employer.

In a letter dated 22^ndJuly 2021 to Mr Robert Watt Secretary General Department of Health the then CEO of the HSE noted the support of the Department in respect of obtaining an independent evaluation of the roles by Mr Conal Devine and stated that the HSE fully support the outcome and are committed to funding same. Therefore, there is no basis for the Devine report covering this cohort of workers not being included in paragraph 2.7 of the extension to Building Momentum.

In line with the requirements of Building Momentum the Union has processed this complaint utilising the procedures available up to and including referring the issue to the Public Service Agreement Group (PSAG) which recommended that the complaint should go back to Conciliation and ultimately on to the Labour Court for a recommendation.

The procedures under Building Momentum at section 5.5 state that when the Labour Court makes a recommendation regarding the matter the process is concluded. The Union is asking that the Court recommend that the Devine report be implemented on terms no less favourable than the reports identified in paragraph 2.7 of the extension to Building Momentum and with the same starting date of 1^stDecember 2022.

Summary of Employer’s submission

The posts of Chief Officer were established in 2014, at that time there were significant challenges to the economy arising from the economic crash. When the salary was set it was understood by all involved that this was an interim arrangement and that the matter of the long-term salary for the post would be revisited when economic circumstances improved. The issue of the pay rate for this grade was the subject of direct discussions between the parties as far back as 2018. More recently it was discussed under the auspices of the WRC in terms of a management requirement for the establishment of a number of pilot learning sites for Community Health Networks.

Contact on this issue continued between the Union and Management until agreement was reached in late 2020 to have an Ad Hoc Job measurement exercise conducted by Mr Conal Devine Independent HR Consultant, that process concluded in February 2021. While Management accepted the report, they believed that the sectoral bargaining provision of Building Momentum was the appropriate vehicle to process the issues.

Forsa took a view that because of the small numbers involved that the sectoral bargaining provision would require other grades to forgo an increase to facilitate the Chief Officers getting paid the rate and that this was not appropriate, nor something that could be delivered.

The claim for implementation of the Devine report was raised at the Health Sector Oversight body in May 2022 and was ultimately referred to the PSAG who at their meeting of October 2022 recommended that the matter be referred back to Conciliation and ultimately to Labour Court if required. It is Management’s position that to implement this claim now would be contrary the Public Service Agreement which is the only mechanism available to address the claim.

Discussion

The Court notes that in response to a question from the Court the Management side accepted that despite not getting paid the appropriate and agreed rate for the job, the Chief Officer’s are carrying out the full range of duties. Management also indicated that they were not in a position to definitely say when they would be able to pay the agreed rate for the Chief Officer posts. They could offer no explanation as to why Hospital CEO’s were able to receive a significant increase without having to go through the process that the Chief officers had gone through for the last number of years. It was their position that paying the Hospital CEO’s was not a breach of building momentum as DPER had approved the payment. To-date no sanction had been received from DPER to pay the Chief Officers.

Both parties indicated to the Court that they were not aware of any other cohort of staff in the same position as the Chief Officers with an agreed rate of pay arising from a report, carrying out the full range of duties but not getting paid the agreed rate for in excess of two years.

The Court notes that the Union submitted that they had sought to have the Chief Officers issue resolved as part of the extension to Building Moment in the same manner as the groups identified in section 2.7 of that agreement and that no explanation had been forthcoming as to why they were arbitrarily excluded.

It was not disputed between the parties that this issue had been processed through the structures contained in Building Momentum. The Court notes that chapter 5 of Building Momentum sets out the processes to be followed by the parties to the agreement. Section 5.3 sets out the composition and role of the PSAG. Section 5.3.4 sets out what PSAG having considered the matters referred to it may do as follows.

• 1.Make a recommendation to the parties in relation to the dispute potentially including the need for further discussion through the resumption of conciliation.

  2.Assign the matter to a Joint Review. The Joint Review Groups shall consist of 2 employee representative, and 2 management representatives including one representative from the relevant discipline on both sides. The Joint Review Groups will assess the position of the parties and endeavour to assist within the terms of the Agreement and within the parameters set by PSAG. Following this, the matter returns to PSAG for consideration.

  3.Refer matters of strategic or national importance with significant implications for the Agreement, to the Tripartite Implementation Body (TIB) for discussion and decision.

In order to conclude this issue, the Court recommends that the Devine report in respect of the nine Chief Officers be implemented in line with the provisions of clause 2.7 of the Review of Building Momentum agreement and with the same commencement of implementation date of 1^stDecember 2022.

The Court so recommends.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
1 March 2023	Deputy Chairman