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WTC/00/46                                      DETERMINATION NO. DWT011
(WT1034/00/GF)
 

PARTIES:               ST. JAMES  HOSPITAL
                                   - AND-
                                     ROSE MCLOUGHLIN

DIVISION:

Chairman:                   Mr.Flood
Employer Member:  Mr. McHenry
Worker Member :     Mr. O'Neill

SUBJECT:
1. Appeal against Rights Commissioner's Decision  WT1034/00/GF.

BACKGROUND:
2.  The dispute arose out of the claimant's inability to work the night rosters.
The Rights Commissioner issued his decision on 8th. August 2000, as follows:

Decision
"I cannot say that the hospital is in breach of the Organisation of Working Time
Act, 1997. However, it is plain to see that the night staff requirements of the
hospital are affecting the claimant's general health. Photo.s supplied, showing a
discoloration [rash] on the arms, allegedly after the completion of a night
shift, are disturbing.
The claimant is unwilling to comply with the hospital's request to attend the
Occupational Health Department for personal reasons. She has offered to submit
herself to the Blackrock Clinic for whatever tests are required, and in the
present circumstances, I feel it would be reasonable for the hospital authorities
to accept this offer.
I recommend this as the most sensible option."

On 17th. August 2000 the worker appealed the Rights Commissioner's Recommendation
to the Labour Court and the Court heard the appeal on the 12th. of December,
2000.

DETERMINATION:

At the hearing, the Hospital Management indicated that they would facilitate this
Employee with work within the Care of the Elderly Unit, that did not necessitate
night work. This roster would be on a weekly basis.

This was acceptable to the Employee.

This recommendation should be accepted by both parties in settlement of this
dispute.

                                              Signed on behalf of the Labour Court

3rd. January, 2001            Finbarr Flood
HMCD/CC                         Chairman

NOTE
Enquiries concerning this Determination should be addressed to Helena McDermott,
Court Secretary.
 
 

                    Five Steps to Tyranny  Tue, 19 Dec, BBC2, 2100-2200

                    This powerful and disturbing documentary features a number of ground-breaking psychological experiments, and conducts a few new tests of its own in order to prove how easily people obey orders and do harm to others. The experiments range from the initial creation of 'out-groups' to the final acts of vicious behaviour - the first steps to tyranny.

                    Prompted by the death of Martin Luther King, Jane Elliott, an Iowa schoolteacher, investigated the basis of prejudice by separating her class into blue and brown-eyed children. Shown in the programme, the results of creating 'in' and 'out' groups speak for themselves in the immediate and intense reactions of the pupils.

                    In another experiment, programme-makers ask travellers to give up their seats on trains and most  people agree. However, when a man in uniform is added into the experiment, there is a rush to vacate seats.

                    Examples of prejudice and the abuse of authority come from all over the world - predictable locations such as Rwanda, Kosovo, Burma and Israel, but also from the UK. Sheena McDonald explains how similar examples can be easily demonstrated in everyday behaviour in any society. If a man in a football strip falls over, will rival club supporters help him? Dr Mark Levine's experiment provides a fascinating result. If an experiment is conducted on the basis of benefit to science, will people perform an act, such as electrocuting a stranger, against their conscience? The film includes footage of a famous experiment in the 1960s, when people did just that.

                    Social psychologists Professor Philip Zimbardo and Dr Mark Levine, human rights expert Louise Christian and Colonel Bob Stewart contribute to the programme, together with Jeremy Mawdsley (twin brother of James, recently released from imprisonment in Burma), refugees from tyrannies around  the world and members of the British public.
 
 
 
 
 

    The final Summary
 

                                                   THE COURT,

      in answer to the questions referred to it by the Tribunal Superior de Justicia de la Comunidad Valenciana by order of 10 July 1998, hereby rules:

      1.An activity such as that of doctors in primary health care teams falls within the scope of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work and Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time.

      2.The national court may, in the absence of express measures transposing Directive 93/104, apply its domestic law to the extent to which, having regard to the characteristics of the activity of doctors in primary health care teams, that law meets the conditions laid down in Article 17 of that directive.

      3.Time spent on call by doctors in primary health care teams must be regarded in its entirety as working time, and where appropriate as overtime, within the meaning of Directive 93/104 if they are required to be at the health centre. If they must merely be contactable at all times when on call, only time linked to the actual provision of primary health care services must be regarded as working time.

      4.Doctors in primary health care teams who are regularly on call at night may not be regarded as night workers by virtue of Article 2 (4) (b) of Directive 93/104 alone. Whether national legislation on night work by workers whose employment is governed by private law may be applied to doctors in primary health care teams, whose employment is governed by public law, is a question to be resolved by the national court in accordance with its domestic law.

      5.Work performed by doctors in primary health care teams whilst on call constitutes shift work and such doctors are shift workers within the meaning of Article 2(5) and (6) of Directive 93/104.

      6.In the absence of national provisions transposing Article 16(2) of Directive 93/104 or, as the case may be, expressly adopting one of the derogations provided for in Article 17(2), (3) and (4) thereof, those provisions may be interpreted as having direct effect, and therefore they confer on individuals a right whereby the reference period for the implementation of the maximum duration of their weekly working time must not exceed 12 months.

      7.The consent given by trade-union representatives in the context of a collective or other agreement is not equivalent to that given by the worker himself, as provided for in the first indent of Article 18(1)(b)(i) of Directive 93/104.