DETERMINATION NO. LCR22845
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
(REPRESENTED BY IRISH MEDICAL ORGANISATION)
|Employer Member:||Ms Doyle|
|Worker Member:||Mr Bell|
1. Out of Hours Allowance payable to Registrars in General Practice and how that Allowance should be handled with regard to Female Registrars in General Practice while on Maternity Leave.
2. This matter could not be resolved at local level and was the subject of Conciliation Conferences under the auspices of the Workplace Relations Commission. As agreement was not reached, the matter was referred to the Labour Court on 14 August 2023 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 17 October 2023.
The matter before the Court is a dispute about the treatment of an out of hours allowance paid to Registrars in a general practice setting when on maternity leave.
Non-Consultant Hospital Doctors (NCHD) undertake a four-year training programme to become General Practitioners (GP’s) with training undertaken in both hospital and general practice settings. Terms and conditions of employment are governed by a nationally agreed NCHD Contract.
In 2010, an out of hours allowance was incorporated into the employment contracts of NCHD’s for GP Registrars undertaking training in a general practice setting.
The IMO submits that the allowance should be paid as part of salary when a female member is on maternity leave, as employees on maternity leave are entitled to basic pay plus normal fixed allowances. It seeks that the Court direct the HSE to pay the allowance to GP trainees when on maternity leave, and retrospectively pay those denied the payment to date.
In support of its position the IMO states that the purpose of the allowance is to address the gap in pay scales between GP trainees and Specialist/Senior Registrars. It is a normal fixed allowance and is treated as such for pay and pension purposes. It was subject to a 5% reduction as applied to “fixed periodic allowance” under the Financial Emergency Measures in the Public Interest.
For its part, the HSE acknowledges that the allowance is a fixed allowance but asserts that it is not encompassed by the existing maternity rules as it is based on potential overtime earnings forgone. The allowance was introduced to compensate GP Registrars for lack of access to potential earnings when in a general practice setting. NCHD Registrars in a hospital setting do not receive any payment corresponding to lost overtime earning when on maternity leave, and to concede the claim would be unfair and inequitable to those NCHD’s.
The HSE further submits that the claim is a cost increasing claim and so prohibited under the Building Momentum Agreement.
The Court has carefully considered the submissions of both parties to this dispute.
It is accepted that maternity pay in the health service consists of normal basic pay and any fixed allowances but excludes all variable forms of earnings such as overtime.
It is also accepted that the out of hours allowance at the centre of the dispute in this case is a fixed payment. While the parties conveyed different positions to the Court regarding the genesis of the out of hours allowance incorporated into the NCHD contract in 2010, it is clear that the contract of employment expressly states that the allowance is paid “in respect of out of hours work”.
The Court notes that the HSE/Department of Health and IMO have agreed to commence discussions on a new NCHD contract of employment. The Court further notes that the HSE is willing to review the current practice of dis-allowing the out of hours allowance in the calculation of maternity pay. Having regard to the submissions made, the Court is of the view that the best approach to resolving this dispute is in the context of such discussions.
In these circumstances the Court recommends that the proposal put forward by the HSE that this claim be considered in the context of agreed revisions to the Non-Consultant Hospitals Doctors (NCHD) contract of employment be accepted by the IMO. The Court further recommends the matter of retrospection be considered in the context of those discussions.
For the reason set out above, the Court does not recommend concession of the unions claim at this time.
The Court so recommends.
|Signed on behalf of the Labour Court|
|01 November 2023||Deputy Chairman|
Enquiries concerning this Recommendation should be addressed to Therese Hickey, Court Secretary.