INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SOUTH EASTERN HEALTH BOARD
- AND -
THE IRISH NURSES' ORGANISATION
Chairman: Ms Owens
Employer Member: Mr Keogh
Worker Member: Mr Rorke
1. Appeal against Rights Commissioner's Recommendation No. 738/96.
2. In April, 1996, the Board took over the running of Ely Hospital, Wexford, from the St. John of God Order. Prior to the take-over, discussions took place locally arising from which many issues were resolved. However, one issue that remains outstanding concerns the nursing staff's wish to retain their existing right to have Good Friday regarded as a privilege day. The dispute was the subject of investigation by a Rights Commissioner who found that the staff concerned had benefited significantly from the take-over by the Board and, consequently, it was reasonable for the Board to seek to bring their leave arrangements into line with the norm within the Board and the health area generally.
The Rights Commissioner recommended that the additional day's leave should apply in each of the four leave years 1996/7 to 1999/2000 and that normal leave allowances should apply thereafter. The Recommendation was appealed by the Union to the Labour Court on the 29th of May, 1997, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal, in Wexford, on the 29th of April, 1998, the earliest offered date suitable to both parties.
3. 1. The Union is not seeking to establish a new right to the concession on Good Fridays for the staff in question. It is seeking the recognition and continuation of an existing right, by the new employer, the South Eastern Health Board.
2. The function of the Transfer of Undertakings Directive in safeguarding employees' rights when there is a change of employer would be undermined by the South Eastern Health Board's selective acceptance of employees' rights.
3. The European Court of Justice has found the "contract of employment or employment relationship continues unchanged with the transferee". This is viewed as guaranteeing rights and obligations arising under collective agreements.
4. It is the Union's contention that the Good Friday concession currently enjoyed by the staff is an established employment right. The loss of this right on transfer would create an unwelcome precedent in the function of the Acquired Rights Directive. Accordingly, the nursing staff employed at the time of transfer should retain their right to Good Friday as a concession day.
4. 1. On transfer to the Board, nursing staff at the Ely Hospital had pay and conditions which are applicable to staff nurses in the Board applied to them, giving them considerable increases in their basic rate of pay. Additionally, incremental credit was granted in respect of service in Ely Hospital as a private hospital. Those deemed to be permanent employees were entitled to have their names entered into the Local Government Superannuation Register. They also received improvements in sick pay, maternity leave and special leave entitlements.
2. Nursing staff, while engaged by the St. John of God Order, had an entitlement to Good Friday as a privilege day prior to the transfer to the Board. However, the Board does not apply this concession to staff working within its area and, in view of the fact that considerable concessions and improved conditions have been made to transferred staff, over and above those conditions enjoyed by them previously, the Board is not, therefore, agreeable to the granting of this concession. The Board also had difficulty with the granting of such a concession in view of the fact that it would give transferred nursing an additional day's leave over and above the terms and conditions of all other nursing staff employed in the Board's area and it would have created disparity in entitlement to annual and special leave for staff within the Board.
The Court is satisfied that the Rights Commissioner's Recommendation is reasonable in the circumstances outlined and, accordingly, should be upheld.
The Court, therefore, rejects the appeal and so decides.
Signed on behalf of the Labour Court
18th May, 1998______________________
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.