ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00010202 & ADJ 00025593
Director of Nursing
Health Care Providers
Remote Hearing on 21st July 2020
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 21st July 2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Worker was employed as Area Director of Nursing until his retirement on 22nd November 2017. He has a dispute with his former employer regarding non-payment of on call services from September 2009 to July 2014 and payment of time in lieu from 2009 to 2017.
This claim was originally lodged with the Workplace Relations Commission under ADJ 10202 on 24th August 2017. A similar claim ADJ 25593 was lodged with WRC on 22nd November 2019, he also claimed for payment in lieu under this claim.
Supplementary submissions were presented by both parties by 20th August 2020.
1)Claim ADJ 25593 out of time
The Worker originally submitted a claim to the WRC under ADJ 10202 regarding on call allowance which had been a long-standing dispute. That matter was adjourned to allow local discussions. The matter was not resolved and rather than resurrect the original claim a new claim was submitted to the WRC ADJ 25593 regarding the same on call dispute but also added the payment in lieu issue.
At this hearing on 21st July 2020 it was agreed that there were time limit issues with the claim ADJ 25593 as the Worker had retired on 22nd November 2017. It was the Employer’s position that the original claim ADJ 10202 was the matter at hand.
It was agreed by the parties that this hearing was under ADJ 10202 and so the time limit did not arise.
2) Collective claim not appropriate for Adjudication
They stated that owing to the collective nature of this claim and implications for other employees locally and nationally the matter is not appropriate to the WRC for adjudication. They cited ADJ 23665 a Consultant Employee and the HSE it stated”, Based on the conclusion that this is a collective issue and possibly nationally, I do not have jurisdiction to recommend a resolution to this claim”.
They stated that as a result of a national agreement concluded between the Employer and unions representing Nurse Managers in this service to introduce revised nurse management structures consistent with the provisions of “Vision for Change” the Worker was appointed to his final role with effect from 1st April 2013. This claim submitted by the Worker is not unique to the position he held and if this claim was successful it has a “knock on” effect to similar positions held across the organisation, including Area Directors of Nursing. They also stated that out of hours calls are not unique to Area Directors of Nursing in Mental Health Services. Senior Managers across the service work and are available to the service in order to respond to emergency situations arising outside of normal working hours. Such a commitment is reflected in the rate of pay. There was a national agreement in 1999 wherein the rate of pay identified for the Chief Nursing Officer position recognised that Nurse managers are called upon to respond to emergency situations outside of their normal working hours. There was comprehensive engagement with the unions in 2012 which resulted in the introduction of a formal on call arrangement for Assistant Director of Nurses in this area. The Employer engaged with the Worker in his role as Area Director of Nursing on behalf of Nurse Managers and they agreed to introduce a formal approved on call rota for Managers effective May 2014. On call out of hours arrangements have been introduced for Nurse Managers to include Area Directors of Nursing by way of approval between the Employer and Employees regarding service needs. The introduction of a formal approved on call arrangement for Area Directors of Nursing in this area remained outstanding at the time of this Worker’s retirement in 2017. The matter was ultimately addressed for Area Directors of Nursing in this location/area effective 1st January 2019. It was agreed with relevant Area Directors of Nursing for this location to pay retrospection to those Area Directors of Nursing to 1st May 2016. This shows that he has been treated the same as other Area Directors of Nursing in this location and he received an on-call allowance for the period April 2014 to November 2017 when he retired. A concession of this claim for an additional five years has the potential to result in similar claims being lodged by the other Area Directors of Nursing and indeed by other Managers across the services.
Sec13 (2) of the Industrial Relations Act 1969 recognises that disputes with rates of pay, hours of work, annual holidays of a body of workers are not appropriate disputes for referral to the Rights Commissioner Services, now the WRC Adjudication Services.
The claim for out of hours is unique to the Worker. The Area Directors of Nursing for this service in this location had a nationally agreed On-Call roster for their services since 2012 which seriously reduced the necessity for their Area Directors to respond to emergency situations. The Worker was the sole senior manager employed in this service in this location. The Employer introduced On-Call services to this service in 2012 solely to reduce the cost of senior nurse managers on night duty. The current national discussions regarding the Area Director of Nursing role have no bearing on the Worker’s claim. The separation was confirmed in writing on 9th October 2017 stated “that a case for payment to yourself for the period outlined above was different from a general understanding that a Director of Nursing would be available out of hours. He committed to actual time on an actual roster from 2009 onwards. The Employer had used the Adjudication Services of the WRC in a similar case ADJ 5500. This is not a dispute but a claim in regard to the application of an existing allowance that has been in place for two decades and recognition of time owed for fulfilling a service that was sanctioned by the Employer. A full joint submission on the Area Director of Nursing has been submitted to the Department of Health. At no point in time has this claim included “on-call” arrangements or time in lieu. On call payments for nurse management was agreed more than 20 years ago and is not in contention in anyway apart from incidences such as the claimants where the employer refuses to sanction payment in line with national agreements. The current national claim concerns financial control, increase in responsibilities of Area Directors of Nursing and regrading/remuneration. Any suggestion by management that this process includes any discussion or negotiation regarding on-call arrangements is a falsity and an attempt to blur lines to their advantage. This is not a collective matter and the Adjudicator may deal with it.
Decision on this preliminary point
I note that the Industrial Relations Act Sec 13(2) states, “
Where a trade dispute (other than a dispute connected with rates of pay, of, hours and times of work, of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part V1 of the Principal Act, a party to the dispute may refer it to a rights commissioner.
The issue for consideration under this preliminary point is not does the Worker have an entitlement to the claims made but rather that the claims are of a collective nature that have an application to other persons and grades within the sector.
I note that the Employer stated that as a result of a national agreement concluded between the Employer and Unions representing Nurse Managers in this service to introduce revised nurse management structures consistent with the provisions of “Vision for Change” the Worker was appointed to his final role with effect from 1st April 2013.
Therefore, I find that his appointment was subject to a collective agreement.
I find that he continued in the role of Area Director of Nursing until his retirement.
I find that the position that the Worker held was not unique and that there were other Area Directors of Nursing throughout this area and nationally.
Therefore, as his post was not unique I must find that any claim that he submits has implications for the collective agreement.
I find that if this claim was successful then it would have to have knock on effects on other similar positions and grades.
I find that out of hours is not unique to the Worker and his post. It is clear that senior managers across the sector operate such hours.
I find that a collective agreement of 1999 rates of pay for Chief Nursing Officers were agreed which recognised that Nurse Managers would be called upon to operate emergency situations outside of their normal working hours.
I note that in 2012 a collective agreement was reached which resulted in the introduction of a formal on-call arrangement for Assistant Directors of Nursing.
I note that on 20th December 2012 the group of Directors of Nursing now Area Directors of Nursing sought approval for the introduction of an On-Call roster for the grade of Director of Nursing.
Again, I find that this was a collective negation process.
I found evidence that the Worker in his capacity of Area Director of Nursing engaged with the Employer on behalf of Nurse Managers within his area of responsibility.
Again, I find that this was a collective negotiation process.
I find that on-call out of hours arrangements were introduced for Nurse Manager, to include Area Directors of Nursing through agreement with the Employer and Employees.
I note that ultimately there was an agreement between the Employer and Area Directors of Nursing to approve on-call rosters for Area Directors of Nursing with effect from 1st January 2019.
Again, I find that this was a collective agreement.
Therefore, having considered the verbal and written submissions I have concluded that this claim has collective implications and according to the Industrial Relations Act Sec 13(2) I do not have jurisdiction to deal with this claim.
3)Cost increasing claims precluded.
This is a cost increasing claim which is precluded under the current Public Service Stability Agreement August 2019, it stated “cannot support the concession of a claim which, of itself, could constitute a breach of the parties’ own collective agreement which is the PSSA”.
This claim is not a breach of the collective agreement which is the PSSA. This is not the case. The PSSA does not include any provisions that would alter the claim at hand, has no bearing on agreements previously in place and is not part of the PSSA. The cost involved is solely due to the failure of the Employer to address this claim in 2009. This is not a cost increasing measure as proscribed by the PSSA as the claim is an existing arrangement within the health sector and not an attempt to introduce new pay arrangements.
Decision on this preliminary point
I refer to the second preliminary point above concerning collective agreements.
In view of my decision on that matter I do not need to address this point.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have decided that this claim is a collective issue with implications for other employees both locally and nationally.
I do not have jurisdiction to deal with it, I so recommend.
Dated: 8th September 2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Claim has collective implications