INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
DEPARTMENT OF HEALTH AND CHILDREN
(REPRESENTED BY THE HEALTH SERVICE EMPLOYERS AGENCY)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
PSYCHIATRIC NURSES ASSOCIATION
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Compensation for loss of entitlements due to the removal and further reinstating of the seniority ruling.
2. During the 1960,s and 1970,s promotion to Deputy Charge Nurse (equivalent to Clinical Nurse Manager (CNM1) and to Charge Nurse (CNM11) in the psychiatric service was on the basis of seniority. In 1982 the Nurses Forum was established to examine the criteria for promotion. The forum reported in 1987 and recommended that promotions be on the basis of merit. During the course of deliberations of the forum, seniority continued to be used as the method for filling the posts in question, but posts were filled on an acting up basis only. Once the forum had made its recommendations those who had held posts on an acting basis received compensation. Following the forum report seniority was no longer used as the basis for promotion.
Following the nurses dispute in 1999 the subsequent Labour Court recommendation (LCR16330) provided for the creation of 1,100 promotional posts (of which 100 were in the psychiatric service) graded at CNM 1 with 50% to be filled on the basis of seniority. A new post of Senior Staff Nurse(SSN) was also created, with posts to be filled by nurses with 23 years or more of post qualification nursing service. The service requirement has since been reduced to 20 years. The Unions claim that the abolition and subsequent re-introduction of seniority had significantly disadvantaged their members in terms of promotional opportunities earnings and pension entitlements. The unions submitted claims for compensation and revision of pensions in respect of the following groups:
1.Nurses who were next on the Seniority Panel in 1987 (November) and appointed to a Promotional Post on foot of LCR16330
2. Group of nurses who were on the Seniority Panel in 1982 and who did not qualify for appointment in 1999
3. Group of nurses between 1982 and 1987 who found themselves in limbo as a result of the change in the law in 1982 but because of the ongoing negotiations the final outcome was delayed to November, 1987
4. Nurses who were on a Seniority Panel in 1982 and who have retired since
5. 90%: This is a group of nurses who were acting in Supervisory Posts who subsequently competed for these posts and who were unsuccessful
Management rejected the claims. The dispute was referred to the Labour Relations Commission. A conciliation conference was held but agreement was not reached. The dispute was referred to the Labour Court in July, 2003 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Court hearing was held on the 16th October, 2003.
3. 1. The claimants were discommoded from promotional opportunities as a result of the legislative changes which occurred with the implementation of the Employment Equality Act, 1977 and also those changes in 1982 on foot of the Nurses Forum and the agreement in 1999 (LCR16330 refers). Nurses entered the service with a guarantee that they would be promoted, subject only to satisfactory service. Subsequently this promise of career development and its attendant financial and superannuation benefits were taken away from them. The claimants could not accept that this would be done without some form of compensation.
2. The circumstances have changed since LCR 11528 when the Court recommended that compensation should not be paid "now". At that time the claim involved approximately 5000 psychiatric nurses whereas now the number of claimants are in the mid hundreds. They feel that their grievance has never been properly addressed.
4. 1. Promotion to ward supervisory posts prior to 1982 was achieved by progressing upwards on the seniority panel. With effect from September, 1982 the method of access to a ward supervisory post was changed, but no psychiatric nurse who fulfilled the qualification criteria was deprived of access to a promotional post as a result of the changes introduced by the Psychiatric Nurses Forum.
2. The claim has already been the subject of a Labour Court investigation and recommendation (LCR 11528 refers). The report of the Psychiatric Nurses Forum and LCR 11528 were accepted by the Unions.
3. Both the SSN and CNM 1 posts were recommended by the Labour Court and accepted by the parties in good faith, in response to particular circumstances that prevailed at the time i.e.the national nurses strike. The terms of LCR 16330 cannot be taken as 'reinstating' promotion in the psychiatric nursing service.
The changes in the promotion prospects of those associated with this claim came as a result of the requirement to treat men and women equally in employment, which was first introduced in law by the Employment Equality Act, 1977. Prior to the introduction of that legislation there were many situations in which men had an institutionalised advantage over women in terms of promotion and in access to employment generally. It is axiomatic that in order to introduce equality for women it was necessary to discontinue discriminatory advantages conferred on men. In essence, this is what occurred in the Psychiatric Health Service in 1982.
The Court cannot see any basis upon which the removal of a discriminatory practice 21 years ago can now give rise to a legitimate claim for compensation. The Court is further satisfied that the agreement of 1999, which provided for a limited number of promotions on the basis of service, has no relevance to the events giving rise to this claim.
For these reasons the Court does not recommend concession of any of the claims.
Signed on behalf of the Labour Court
27th October, 2003______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.