INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1); INDUSTRIAL RELATIONS ACT; 1990
HSE SOUTH EAST
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Payment of Subsistence from 1st July 1998.
2. The dispute before the Court relates to a number of workers employed as ‘Family Support Workers’ They provide assistance and support to families in need of help with childcare and other family difficulties and this work involves travel to and from the homes of the families concerned.The Union’s claim for outstanding subsistence payments due to Family Support Workers since July 1998 when they were retrospectively placed on the equivalent of the Group 8 (Non-Nursing) scale.
The dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 5th October, 2005 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 27th February, 2007.
3.1 The issue of an increase in subsistence has been ongoing since 1997. In all correspondence from every level of the Management team up until 2001, it always stated Travel/Subsistence. This was acceptable to the Department of Finance, to the HSE and to Senior Management. However local Management decided against it following agreements with the assistance of the Labour Court, Labour Relations Commission and Assessors.
2. The Union do not accept the HSE's position for not paying the subsistence from the due date of July 1998. HSE hold the view that as the bases the workers work from are only an interim arrangements (notional base). The Union submit that as the Revenue Commissioners accept these bases for the purposes of travel allowance, they should similarly be suitable for subsistence allowance.
3. An interim base has been in place since March of 2001. Management have not presented the Union with proposals to introduce new bases which should be properly equipped with tables, phones, stationary etc. The Union contends that these bases do not exist.
4. The claimants have been extremely patient with the HSE in waiting for an agreement on subsistence. The Union do not have a difficulty in engaging constructively with Management on deciding on bases going forward. However, the Union is of the view that the present base has been identified to date for travel/subsistence allowance purposes in all correspondence and discussions, then management should pay the appropriate retrospection from July 1998.
4.1 Management accept that subsistence allowances will be paid, but are not prepared to pay from a notional base as it will add significantly to travel costs for the Board.
2. Management have also indicated that it is necessary to change the base of certain Family Support Workers and that it is unreasonable for staff to resist the change in light of the change and modernisation agenda of National Pay Agreements.
3. An ex-gratia offer was made at conciliation in an effort to solve this dispute and is reasonable in the circumstances but was rejected by the Union.
The matter before the Court concerns the Union’s claim for outstanding subsistence payments due to Family Support Workers since July 1998 when they were retrospectively placed on the equivalent of the Group 8 (Non-Nursing) scale.
Management has accepted that subsistence allowance should be paid to the workers concerned but does not accept that it is due from July 1998 and is of the view that it should apply from the year 2000, when the Department of Health and Children approved the implementation of an agreement on pay and conditions for Family Support Workers. However, it does not accept that notional bases, which were agreed for the purposes of travel allowances, are appropriate for the calculation of subsistence allowances.
Management maintained that more realistic bases should be assigned to more accurately reflect the geographical location of the employees work and indicated that when agreement is reached on the bases, subsistence will be paid from January 2005. Agreement on this issue could be reached as part of the ongoing discussions on alignment of these workers with Primary Care Workers.
Furthermore, in full and final settlement of the retrospection claim for years prior to 2005 management made an offer to pay €56,000 as a gesture of goodwill payment, to be divided on a pro-rata basis, relative to the contracted hours, to staff who had entitlement to subsistence.
Having considered the views of the parties expressed in their oral and written submissions, the Court recommends that in full and final settlement of this claim, the Union should as part of the Primary Care Workers discussions, agree new bases to apply for the future and in return Management should improve its goodwill offer to €80,000 and should immediately pay the retrospection due for 2005 and 2006.
The Court so recommends.
Signed on behalf of the Labour Court
20th March, 2007______________________
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.