INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
ST MARY'S OF DELVIN, SISTERS OF CHARITY JESUS AND MARY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
IRISH NURSES ORGANISATION
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. 1. Additional cover-query on overtime rates 2. Night duty 3. Additional care assistants on night duty.
2. The dispute concerns nurses employed at St. Mary's residential unit in Delvin County Westmeath. In June, 2003 industrial action was taken by the Union because of a Management decision to convert funding for ten staff nurse posts into care attendant positions. Discussions held at local level and at a conciliation conference held under the auspices of the Labour Relations Commission resulted in agreement being reached on a number of issues. Three issues remain unresolved as follows:
1.Overtime Rates- The Union claims that the fundamental principles of overtime rules as provided for in National Agreements are not being applied to reduced hours workers and job sharers.
2. Night Duty- The Union claims that a CNM2 acting up to CNM3 supernumerary post is required.
3. Additional Care Assistants- The Union claims that additional care assistants are required on night duty.
The dispute was referred to the Labour Court in June, 2003 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Court hearing was held on the 27th November, 2003.
3. 1.Overtime.Where employees are job sharer/reduced hours workers overtime is payable to such employees when they are required to work overtime on days they are rostered off. This is provided for in the Agreement on Flexible Working in the Health Service and is presently not being adhered to by the Employer.
2.Night duty.The facility, due to its isolated location and the stand alone nature of its units, needs supernumerary nurse management supervision at night. The present cover is inadequate. A supernumerary person of at least CNM2 grade, acting up to CNM3 grade should be in position as a matter of course. By custom and practice this post has been covered by an Assistant Director of Nursing in the past.
3.Additional care assistants.There is a need for an established Nurse Management grade on night duty to replace the religious sisters who traditionally provided cover. To achieve this goal it is necessary to have additional care assistants as nurses will have to act up one grade while on night duty.
4. 1.Overtime rates.The Organisation is applying the overtime rates in accordance with the Agreement on Flexible Working in the Health Service. Acceding to requests for overtime outside of the circumstances cited in the agreement would lead to an inequitable situation whereby part time workers would receive more favourable treatment than full time employees.
2.Night duty.(i) There is no need for a CNM3 as the decisions made at night are within the scope and responsibilities of the CNM2. There are no CNM3 posts in the residential services of the Organisation.
(ii) The claim is cost increasing and precluded under the Sustaining Progress Agreement.
3.Additional care assistants.(i) As part of the relocation of clients to community houses the numbers on site have actually reduced, thus reducing any necessity for additional care assistants.
(ii) The claim is cost increasing and precluded under the S.P. Agreement.
The Court has carefully considered the oral and written submissions to the Court and recommends as follows:
The Union sought clarification on the applicability of overtime rates to part-time and job sharing employees. Both sides accept that the Agreement on Flexible Working in the Health Service is the applicable agreement between the HSEA and INO on the issue of overtime. However, the Union contends that the policy is unclear when overtime rates apply. This confusion is caused by the lack of identification of rostered days off- when overtime rates should apply; and optional days off- when flat rates should apply.
The Union's understanding of the agreement is that no overtime payments will apply to part-time/job sharing employees until such employees are required to work in excess of the working hours of "their full time comparators"
The Court notes Appendix 1 to the agreement, which outlines
circumstances within which payment at overtime rates in respect of additional hours worked will be applicable upon introduction of flexible working arrangements.
This clause gives a certain amount of clarity on the issue and the Court was given details of premia, which apply for Saturday, and Sunday working.
However, the Court is of the view that the employer should specify the periods during the week when overtime will be paid to full time employees and consequently when it will apply to part-time/job sharing employees. The Court recommends accordingly.
The Court has not examined this case under the terms of the Protection of Employees (Part-Time Work) Act, 2001 (the Act).
The Union argued that cover was always provided on night duty by an Assistant Director of Nursing or the Director of Nursing who used to live in. As this person no longer lives in, the Union argues that the need for night supervision still exists. The Union indicated that it would accept a CNM2 acting up as a CNM3, who was not attached to any of the Units.
The Union argues that there is a risk associated with the night duty cover currently provided by the Employer and indicates that a nurse could be at risk by acting outside her role at night due to the lack of a CNM3 at night. The Court is not in a position to assess whether this is a credible proposition and accordingly recommends that an assessment should be carried out by a suitably qualified person who should report back to the parties by the end of February, 2004. Following this, if the issue is not resolved between the parties it may be referred back to the Court for a definitive recommendation.
Additional Care Assistants on Night Duty
The Union sought the appointment of two additional care assistants for each CNM2 on night duty. The Court recommends that an examination of the necessity for such additional posts should be included in the above-mentioned exercise, subject to the same deadline with the possibility for referral back to the Court if not resolved between the parties.
Signed on behalf of the Labour Court
11th December, 2003______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.