Background to the Act
When the Protection of Employees (Temporary Agency Work) Act 2012 was introduced in May 2012, there was some speculation that its failure to provide for a comparator that the claimant agency worker could compare his or her less favourable treatment to, would lead to a low number of claims. This is because an agency worker under the legislation is only entitled to the same basic working and employment conditions as if he or she were employed by the hirer to the same or a similar job.
One the first significant decisions of the Labour Court on appeal under this Act - that of Stafford and Isaacson and others (AWC/13/16, Determination AWD 142, 6th February 2014) – eased such concerns holding that ‘what the Court must examine is the rate of pay of directly employed workers occupying the same job as agency workers as set out in statute, in a collective agreement or which applies generally to those workers’.
According to the 2013 Annual Report of the Labour Relations Commission, 171 referrals were made under the Act in 2012 increasing to 218 referrals in 2013. There have also been a number of appeals to the Labour Court under the legislation and it would appear that a significant majority have gone in the complainant’s favour.
A number of recent appeals have examined what constitutes basic pay for the purposes of the legislation. The term ‘pay’ is defined to include basic pay and any pay in excess of basic pay including in respect of shift work, piece work, overtime, unsocial hours worked, or hours worked on a Sunday.
However, the problem here is that the term ‘basic pay’ is not itself defined. In Mahon v Nurse on Call (reviewed in Legal Island email No. 1281, 18th February 2015), the Court found that a specialist midwifery qualification allowance payable to employees directly employed by the HSE but not to agency workers was part of basic pay. The Court concluded that the parties themselves treated this allowance as basic pay and that this term had to be considered in its totality and may mean more than just the basic rate of pay.
Summary of Case Outcomes
The first case reviewed in today’s email (Nurse-on-Call and Krankowska & Others) considers a similar type of case with the same respondent attempting to defend its position. In this case, the Court arrives at a similar conclusion that the relevant allowances are part of basic pay, in particular because they were covered by a collective agreement agreed between the HSE and the relevant unions, backed up by administrative circulars. It is worth noting, however, that the Court stated that, in terms of coming to its decision, ‘it is not aided by the fact that there is no provision for a comparator in the Act’.
Non-consultant hospital doctors (NCHDs) have often been required to work long hours by the hospitals where they are employed and this has long been a source of frustration and concern for the staff themselves and for the general public.
The European Working Time Directive (EWTD) was agreed in 1993 and it provided that an employee’s average working time for each seven-day period, including overtime, must not exceed 48 hours. The EWTD was transposed into the Irish legal system by the Organisation of Working Time Act 1997 which provided in this regard that no employee should be required to work more than an average of 48 hours per week over a reference period of 4, 6 or 12 months, depending on the sector in question.
This Directive did not apply to doctors in training. However, further EC directives were agreed in 2000 and 2003 which brought trainee doctors within the scope of similar, albeit less restrictive, rules on working time. Regulations were introduced in Ireland (the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations, SI 494/2004) to comply with this further Directive and these were further amended in 2010.
It is widely speculated that the working hours of such employees still frequently exceed those permitted by law. This eventually led to a ‘reasoned opinion’ being issued by the European Commission that Ireland had failed to comply with its obligations under the Directives applying to doctors in training.
The matter was referred on to the Court of Justice of the European Communities (CJEU) to determine and in its recent decision of July 15th 2015 it found, nevertheless, that the Commission had not proved the existence in relation to Ireland of practice contrary to the Directive applying to the organisation of working time of NCHDs.
The second case reviewed in today’s email (HSE South & Kerry Hospital and Lukco) concerns a non-consultant hospital doctor who worked in excess of the permitted hours and who was also subject to other infringements of the regulations. His claim before a Rights Commissioner (RC) succeeded but he nonetheless appealed to the Labour Court on two grounds; first that the RC had failed to exercise jurisdiction to extend the time period encompassing infringements of the Act; second that the amount of compensation (€3,000) awarded did not adequately reflect the seriousness of the breaches of the regulations and did not act as a sufficient deterrent against future infringements.
His appeal on the first ground failed with the Court again finding that there was insufficient evidence that his delay in making his claim was due to reasonable cause (see Legal-Island email No 1321, 18th June 2015 for recent instances where the Labour Court similarly declined to extend the time limit).
However, the Court increased the level of compensation to €20,000, a significant warning to other hospitals that breaches of what are essentially health and safety standards concerning the working time of junior doctors will be punished.
These cases are:
1. Nurse-on-Call and Krankowska & Others (AWC/14/12, Determination No. AWD 1514, 16TH June 2015).
The claimants in this case were employed by the respondent employment agency as nurses assigned to work with the HSE in a variety of units at Tullamore Hospital. Although each subsequently became direct employees of the HSE, their complaint under the Act was that when they had worked for the employment agency, they were not paid a specialist qualification allowance (for those with a specialist qualification) or a location allowance (for those without a specialist qualification) for working in a specialist unit. They argued that such allowances were part of the basic pay of permanent colleagues. Their claimed before a Rights Commissioner (RC) failed and they appealed that decision to the Court.
It was agreed that the single issue to be determined on appeal was whether either the specialist qualification or location allowance is part of basic pay for the purposes of the Act. The union on behalf of the claimants argued that both allowances are a constituent part of the basic pay of nurses working in specialist units and this is reflected in the fact that the collective agreement agreed with the HSE provides for them. Management on the other hand maintained that such payments are in addition to basic pay and vary according to the qualifications held by the individual nurse.
* The Location Allowance
The Court referred to its decision in Mahon v Nurse on Call (AWD 131) that in determining whether a payment forms part of basic pay, it would normally have regard to the manner in which the parties themselves regard it. In the Mahon case, the Court noted a Departmental Circular Letter (13/2002) which suggested that basic pay is understood by both employers and trade unions in the public service to include allowances in the nature of pay and that pension contributions are normally payable on such allowances.
It was clear to the Court in this case that work in a specialist unit attracted either a specialist qualification or location allowance. All nurses working in the units concerned for the HSE automatically qualified for the location allowance, only those holding relevant qualifications for the former. It was noted by the Court that the location allowance moved in line with basic pay and was included for pension purposes in the calculation of nurse’s salary and therefore came within the terms of the circular outlined above.
Furthermore, the Court noted that a more recent Circular DPE/71/12/13 on pay adjustments, issued in connection with the Financial Emergency Measure in the Public Interest Act, 2013 and the Haddington Road Agreement, suggested that a reference to salary is taken to include allowances in the nature of pay which are fixed periodic pensionable allowances, which are not paid in respect of an expense incurred and which are not reliant on the type or amount of the work performed. The Court felt that the location allowance at issue here came within that definition.
In summary, the Court found that the location allowance is treated part of basic pay by the HSE, that it came into effect on foot of a collective agreement between the HSE and the unions and that it was given administrative effect by a Department of Health circular. The claimants were therefore entitled to payment of it.
* The Specialist Qualification Allowance
The Court noted that payment of this allowance was not automatic but depended on the nurse working in the relevant unit having the requisite professional qualification. Management argued that a payment which is dependent upon the qualifications of an individual employee cannot be considered to be part of basic pay.
The Union on the other hand suggested that it is an element of basic pay for qualified staff and argued that the relevant test to determine this question is what rate of pay would a directly employed nurse with the necessary qualification working in such a unit be paid. Management on the other hand suggested that the relevant test should be what the basic rate of pay of a nurse working in such a unit is.
The Court observed that ‘it is not aided by the fact that there is no provision for a comparator in the Act’. Instead, under Section 6 of the Act, an agency worker is entitled to the same basic working and employment conditions as if he or she were (directly) employed by the hirer. It noted, however, that ‘basic working and employment conditions’ in Section 2 (1) of the Act meant terms and conditions required to be included in a contract of employment by virtue of any enactment or collective agreement, including those related to pay.
In this case, it is accepted by both parties that a collective agreement established such basic working and employment conditions. These included provision for different treatment in relation to pay for nurses who work in specialist units. A directly employed nurse holding the appropriate qualification is entitled to the specialist qualification allowance by virtue of a term inserted into her or his contract of employment by the collective agreement.
The Court concluded therefore that the allowance is part of the basic pay of directly employed nurses and by extension comes within the definition of basic pay under the Act. The claimants in this case who also held the appropriate qualifications and worked in a specialist unit were therefore also entitled to that allowance.
Full case decision:
http://www.workplacerelations.ie/en/Cases/2015/June/AWD1514.html
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