INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
MID WESTERN HEALTH BOARD
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Restoration of allowance.
2. The issue involved a worker and a red circled allowance which was to be paid to all Clinical Nurse Manager1's (CNM1's) in the Health Service following Labour Court Recommendation LCR 11528 which dealt with 'compensation for loss of promotion' and LCR 16261 which dealt with the'impact of the loss of differentials'. The allowance was paid to the worker but then removed because she was on a different and unconnected allowance.
As the dispute could not be resolved at local level, the Union referred the claim to the Labour Court on the 26th February, 2004 in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Labour Court hearing took place on the 6th October 2004.
3. 1. The worker was originally paid the new allowance (90%) by management. The decision was then reversed and payment stopped.
2. The payment was made to compensate the grade CNM1 for the loss of differential and LCR 16261 stated "This arrangement clearly deals with perceived loss of significant current differentials, arising from the new grading structures".
3. The worker's substantive post is CNM1, if the CNM1 had been awarded the same increase as CNM11 the worker would have received that payment without question. Therefore she suffers the same loss because of the "loss of significant differential"as all other CNM1's.
4. Most of the staff receiving the 90% allowance are at the substantive post of staff nurse and along with premium pay and other allowances would be earning more than some promotional grades.
5. Management claim that the worker did not suffer a loss of differential as she was already on 90% of the CNM11 salary. This is not the case, because the allowance of 90% is a 'stand alone'allowance awarded because she was not successful in securing promotion. This was a National Agreement which came about as a result of the change in the criteria for promotion in the 1980's . It it paid on a'red circled personal to holder'basis and does not infringe on any of the rights and entitlements that the worker would be due in their substantive post.
6. The workers substantive post is CNM1 and as a result of the nurses dispute a further red-circled allowance was paid to CNM1's in 1999 as compensation for loss of differential. If the differential had not been eroded the worker would have received the full amount, therefore she suffered the same loss as all other CNM1's.
7. Staff nurses on the 90% arrangement did not lose entitlement to any allowances or access to any other pay developments. The Union argue why should this worker be the only one to suffer?
4. 1. As the worker was unsuccessful at interview for a promotional post of Nursing Officer/CNM11. She received an allowance of 90% of the difference between the maximum of Nursing Officer scale in accordance with LCR11528.
2. As a result of LCR 11528 the worker combined basic pay (basic salary plus an allowance equal to 90% of the difference between the maximum of the CNM1 and the CNM11 scale) equated to 99.23% of the CNM11/Nursing Officer salary scale.
3. The purpose of the red circled allowance recommended in LCR 16261 was to deal with an apparent loss of differential where significant. In this case there has been no loss in differential, thereby implying there is no entitlement to the red circled allowance.
4. Following representation from the Union, the Board agreed to pay the worker 10% of the red circled £750 (€952.30) allowance. This brings her combined salary to 99.45% of the maximum point of the CNM 11 scale.
5. The rules in relation to acting/higher capacity allowance are clearly governed by the principal that "in no case may the total rate of remuneration of a substitute exceed the maximum of the scale for the higher office".
6. The Board is legally de-barred from paying an employee who is in an acting position more than the rate pertaining to the higher grade post held by the full time post holder.
The Court notes that if the Union's claim were to be conceded the claimant's pay, including the allowance would exceed that of the CNM II grade. The Court could not have intended such a result when it formulated either Recommendation LCR11528 or LCR16261.
The Court accepts that the claim before it has some merit. It recommends that the claimant should receive the red-circled allowance but in an amount reduced so as to avoid her combined salary and the allowance exceeding the maximum of the CNM II salary scale.
Signed on behalf of the Labour Court
14th October, 2004______________________
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.