INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SOUTH EASTERN HEALTH BOARD
(REPRESENTED BY HEALTH SERVICE EMPLOYERS' AGENCY( H.S.E.A.)
- AND -
THE NURSING ALLIANCE
IRISH NURSES' ORGANISATION
PSYCHIATRIC NURSES' ASSOCIATION (PNA)
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION
Chairman: Mr Flood
Employer Member: Mr Carberry
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation IR7358/02/TB.
2. Premium payments in respect of night duty, bank holidays and Sunday working were introduced for nurses in 1974. Nurses acting in positions up to the level of Assistant Director of Nursing qualified for an acting up allowance following a period of one week in the higher positions. The premium pay in respect of night duty, public holidays and Sundays apply to both basic pay and acting up allowance.
In May, 2001, the Department of the Environment confirmed that premium pay should be calculated on the basic pay plus acting up allowances as opposed to basic pay only. The Unions claim that management indicated that the Health Boards would be advised of the clarification and also stated that the question of retrospection would be discussed.
As both sides failed to agree on a methodology for the payment of arrears, it was agreed by both sides to refer the dispute to a Rights Commissioner for investigation.
The dispute was the subject of a Rights Commissioner's hearing which took place on the 9th of August, 2002. The following is the Rights Commissioner's Recommendation:-
"I recommend the following formula should be accepted by both sides in settlement of the dispute.
(1) Nurses who acted in higher posts and to whom premium payments applied, should apply for payment to their Health Board.
(2) For each minimum period of one continuous month acting in a higher post they should be paid pro rata to the value of one year.
(3) The value of one year is recommended as €600.
(4) The maximum payment available to any individual is the equivalent of five years i.e. €3,000.
Application of formula to those who have retired from service:
(1) The proposal outlined above in respect of salary arrears, should also apply to salary arrears due to pensioners.
(2) Pensioners who acted in a higher post in the three years prior to retirement should have their lump sum and pension reviewed to reflect this fact and any adjustment should be in accordance with normal superannuation arrangements."
The Unions appealed the Recommendation on the 24th of October, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court investigated the dispute on the 17th of January, 2003.
3. 1. The Rights Commissioner produced a formula which allowed nurses to apply to their Health Boards for their retrospective payment.
2. He also recommended that for each minimum period of one month's continuous acting in a higher post that they be paid pro-rata to the value of one year.
3. This is contrary to the existing arrangement where nurses acting in higher positions are paid their acting up allowance after a 39 hour week.
4. Changing the qualifying period from one week to one month would eliminate the payment of premium pay on acting up allowance in a majority of cases.
4. 1. Management accept the findings of the Rights Commissioner as a fair and reasonable approach to deal with the complex issue of calculating arrears.
2. The Rights Commissioner's Recommendation will leave employing authorities with a considerable bill in terms of arrears, at a time of severe budgetary constraints.
3. The process of recalculating premium payments for current eligible employees and adjusting pension entitlements for retired staff will take some time.
4. Any reductions in the eligibility time frame from one month will make the job of individually calculating arrears difficult, given the retrospective time frame involved.
It is accepted that in this particular case, a number of employees were deprived of payments they were entitled to, over a lengthy period of time.
The Court is conscious of the arguments made by management in relation to the administrative difficulties, given the time span involved, in calculating the arrears. However, it cannot be fair and equitable that because of these difficulties the individuals affected should lose out on entitlements they were due over many years.
If the Court were to uphold the Rights Commissioner's Recommendation it is clear that very few of those affected would receive the arrears owed. It would also mean that the Boards that did not pay the correct rates would be the beneficiaries over Boards that had followed the correct procedures.
For these reasons the Court recommends that the period of qualification for premium payment when acting-up be one continuous week, rather than one continuous month, as recommended by the Rights Commissioner. The Rights Commissioner's Recommendation to be amended accordingly.
In making this amendment the Court expects the Union to be conscious of the difficulties of implementation of this formula, and to facilitate the management in minimising the task.
Signed on behalf of the Labour Court
30th January, 2003______________________
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.