INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
S2(1), INDUSTRIAL RELATIONS (AMENDMENT) ACT, 2001,
AS AMENDED BY THE INDUSTRIAL RELATIONS(MISCELLANEOUS PROVISIONS) ACT, 2004
BRIGID SEEPERSAD TRADING AS HILLVIEW NURSING HOME
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu
1. Union application under The Industrial Relations (Amendment) Act, 2001, as amended by The Industrial Relations (Miscellaneous Provisions) Act, 2004.
2. The Irish Nurses Organisation and SIPTU are seeking that their workers working within the Hill View Nursing Home and Retirement Home receive the same pay, terms and conditions of employment as their comparators in the private sector and public health system. Following a number of correspondence between the parties the dispute could not be resolved. The matter was referred to the Labour Court on behalf of SIPTU and INO unions on the 26th September, 2005 in accordance with Section 2(1) of the Industrial Relations Amendment Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004 (the Acts). Labour Court hearings took place on the 1st December, and the 8th December, 2005.
The following is the recommendation of the Court.
This dispute was referred to the Court pursuant to Section 2(1) of the Industrial Relations (Amendment) Act, 2001 as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004 (the Acts).
Two Unions (INO and SIPTU) submitted claims to the Court under the Acts, however at the hearing on 1st December 2005, the Home agreed to recognise INO for the purposes of collective bargaining on behalf of nursing staff employed in the Home. Management agreed to enter into immediate discussions with the trade union official. Management was not prepared to extend the same recognition to SIPTU on behalf of Carers, Domestic Staff, Kitchen Staff and Cooks. Therefore, this case deals with the referral under section 2 of the Acts, made by SIPTU.
The Court is satisfied that the conditions specified at Section 2(1)(a) to 2(1)(d) of the Acts were fulfilled in this case and that the dispute was properly before the Court for investigation and recommendation.
This dispute has been referred to the Court following the failure of the employer to attend at the Labour Relations Commission under the Enhanced Code of Practice on Voluntary Dispute Resolution (S.I. 76 of 2004).
The Court has taken careful account of the submissions of the parties in their written and oral presentations. The Court has also had regard to the information with which it was provided in relation to rates of pay and conditions of employment applicable for similar work in other employments within the private nursing home sector. In formulating the recommendations, which follow, the Court has also taken into account the current commercial and financial circumstances of the enterprise.
Section 5(2) of the Act provides that a recommendation made by the Court shall not provide for arrangements for collective bargaining. Subject only to that restriction the Court is required to give its opinion on the matter under investigation and, where appropriate, its view as to the action, which should be taken, having regard to the terms and conditions of employment, in the employment concerned.
The employer contended that it was being denied natural justice on the grounds that the Union has not indicated the number of workers it represents. The Union replied that it represents 80% of the Domestic and Care staff. In this case the Court accepts the assurances of the Union that it is representative of a group of workers who are in dispute with their employer in connection with the issues forming the subject matter of this referral.
The Home was taken over in January 2005 and was registered to its present owner in July 2005. At the present time it has 70% bed occupancy. The employer submitted that its current labour costs are running at 74% in comparison to the national average for private nursing homes of 57%. In response to the Union’s claim, the employer offered to increase the basic rates of pay in line with increases in bed occupancy levels.
Having regard to all relevant circumstances, the Court recommends as follows on each of the Union's claims.
Grievance and Disciplinary Procedures
The Court notes the commitment given by the Home to review its grievance and disciplinary procedures to ensure they reflect the provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).
In response to questions from the Court, the Home indicated that it would amend its procedures to provide for representation of individuals by a Trade Union where they wish to avail of such representation in processing matters arising under the procedures and furthermore, in the event of failure to resolve any grievance or disciplinary matter internally it will provide for the service of the industrial relations machinery of the State, including Rights Commissioners, the Labour Relations Commission and the Court to be availed of in appropriate cases.
Therefore the Court recommends that the current procedures should be redrafted to incorporate the changes agreed and to reflect the normal terms found in grievance and disciplinary procedures, which comply with the provisions of the Code of Practice on Grievance, and Disciplinary Procedures (S.I. 146 of 2000). If there is any dispute in relation to the compatibility of the proposed procedures with the Code of Practice, the question may be processed under Section 43 of the Industrial Relations Act 1990.
The Court is satisfied that the rates of pay of those associated with this claim are out of line with appropriate standards and should be increased. Therefore, the Court recommends that basic rates of pay should be increased with effect from the date of this recommendation. The Court recommends as follows: -
Kitchen Assistant €8.86
The Court recommends that those workers who are rostered to work at night and at weekends should be paid an allowance for those rosters. The Court recommends the introduction of an allowance of 25% for these unsocial hours and this allowance should be paid in lieu of the current Sunday premium.
Where at the request of the employer, overtime hours are worked in excess of normal full-time hours (39 hours per week), payment should be at time and one half for the first four hours and double time thereafter. Where overtime is worked on Sunday (as distinct from working as part of a rostered shift) double time should apply.
Annual Leave and Public Holidays
The Court notes that the Home has committed to pay holiday pay in advance of taking annual leave, as provided for under the terms of the Organisation of Working Time Act, 1997 and secondly it will provide public holidays entitlements to those rostered either on or off, in accordance with the legislation.
Frequency of Pay
The Home changed the frequency method of paying wages from weekly to monthly. The Union sought a reversal back to weekly payments as it caused budgeting difficulties for its members. The Court recommends that those individual employees who wish to revert to a weekly method of payment should indicate so in writing to the employer, who should comply with their request.
Save where it is otherwise provided, these recommendations should be implemented within one month from the date on which they are issued.
Signed on behalf of the Labour Court
22nd December, 2005______________________
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.