INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
VERVILLE RETREAT LIMITED
- AND -
IRISH NURSES ORGANISATION (INO)
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr Rorke
1. Claim for pay and conditions in line with those of Eastern Health Board (EHB) staff.
2. Prior to 1990, Verville retreat operated as a private psychiatric home for the elderly. In 1990, it was purchased by the Eastern Health Board and it is now a wholly-owned company of the Board, caring for 40 residents. In 1996, the Union, on behalf of a nursing staff of 9, lodged a claim for the application of EHB rates of pay, premia, sick-leave, incremental credit, pension scheme and annual leave. The Retreat, in its response, held that the nurses were employees of the Retreat and not the EHB and, accordingly, their claim could not be conceded. However, the Retreat, following local discussions and conciliation conferences under the auspices of the Labour Relations Commission, put proposals to the Union in respect of a number of aspects of the claim. Agreement was not reached by the parties and the dispute was referred to the Labour Court, on the 20th of November, 1998, in accordance with Section 26(1) of the Industrial Relations Act, 1990. The Court carried out its investigation on the 11th of December, 1998.
1. The workers involved in the claim are working directly for the EHB, caring for EHB clients. They should be in receipt of the same rates of pay and conditions as all nurses working in the EHB.
2. The claim by the Chairman of the Retreat and the EHB that the staff are not employees of the latter is rejected. The Chairman is himself an employee of the EHB and the Auditor's Report specifically states that the Directors consider the EHB to the ultimate parent and that the EHB is the controlling shareholder.
3. The admitting criteria to the Retreat have changed since the take-over in 1990. Patients now can only be admitted through the public service "old age facility". All laundry and linen supplies and food for residents can be ordered only via the companies that have the relevant contracts for general EHB supplies. All maintenance and building work have been undertaken by the staff of the EHB. Partnership payments (i.e., PCW and P2000) have been paid at public service rates to staff nurses at the Retreat.
4. Staff nurses in the Retreat are currently paid at the second point of the staff nurses' salary scale. They were placed on the recognised Department of Health salary scales in October, 1996 and both the Union and management agreed at the time that this was an interim offer on salary, accepted by staff without prejudice to their substantive claim.
5. The present inequitable situation is untenable and unjust. Justice, fair play, equity and logic dictate that the claim should be conceded.
1. The Retreat is not an Eastern Health Board facility. The EHB became involved in 1990 when the Retreat was under threat of closure by the Fire Authorities to the extent that it acquired the property and appointed Directors to the private company Verville Retreat Limited. Since that time the EHB has provided capital money but has not been involved in the funding of services provided by Verville Retreat other than as a buyer of its services.
2. In order to apply for and manage its allocation of funding, the EHB is obliged to provide service plans for each financial year. Each programme and functional area must, by law, provide service plans which set out how its allocation of funding will be spent. The Retreat is not included in the service planning of either the Mental Health or the Elderly programmes within the EHB. It is a separate and distinct entity.
3. The Retreat has a mandate to operate as a going concern and in this regard the demands made by the Union undermine the viability of the Retreat in view of the significant additional costs of the claim. The cost of implementing the claim is approximately £63,000 annually and this figure is unsustainable in the context of the Retreat's current viability. The board of the Retreat recognises the quality of care provided by the nursing staff and their commitment to the welfare of the residents in their care. In recognising this commitment and contribution in a positive way, the board has attempted to address the nurses' claim in a pragmatic way and its proposals tabled in this regard to date reflect this approach.
4. The board has not attempted to debar this claim as a breach of P2000, as could have been claimed, but has sought to deal with the issue on an incremental basis. The Union has quoted P2000 and the application of public service increases to staff nurses at the Retreat in support of its claim that the Retreat is a public sector entity. In so doing, the Union is being disingenuous in the context of the stabilisation Clause (6) of P2000.
The issue before the Court concerns a dispute about pay and conditions, resulting from a claim that the employer is the Eastern Health Board. Based on the information given to the Court there is clear evidence to show that there are very strong and indeed unusual linkages between Verville Retreat Limitedand the Eastern Health Board. It appears that this is a unique situation which arose as a resultof capital payments made by the EHB from the time when Verville Retreat Limited was in serious difficulty due to the threatened closure of the facility by the Fire Safety Officer, in 1990.
The Court believes that the Eastern Health Board must be considered as having a major role to play in the operation of this facility while the INO must also acknowledge that to concede this claim in full may cause insurmountable difficulties for Verville Retreat Limited. The Court believes that the Eastern Health Board has more involvement in this facility than is normal in similar facilities.
Bearing in mind the views of the Court, it is recommended that the parties should engage in further discussions. If the parties so wish, they may again seek the assistance of the Labour Relations Commission's Conciliation Services. In the event of the issue not being resolved by the end of February, 1999, the issue may be referred back to the Court for a recommendation.
Signed on behalf of the Labour Court
14th January, 1999.______________________
Enquiries concerning this Recommendation should be addressed to Michael Keegan, Court Secretary.