Labour Court Database __________________________________________________________________________________ File Number: CD88682 Case Number: LCR12059 Section / Act: S67 Parties: TROCAIRE - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Claims by the Union - (a) that secretarial staff should have the right to join the Organisation's pension scheme after one year of permanent employment. (b) that the clause in the income continuance plan which excludes pregnancy related illness be deleted. (c) that the pay and conditions agreed between the Union and Trocaire be applied to a project officer. CLAIM A that secretarial staff should have the right to join the organisation's pension scheme after one year of permanent employment.
Recommendation:
10. (1) Pension Scheme
In the light of the submissions made by the parties the
Court recommends that subject to whatever changes are
required to comply with the Equality Acts, that further
amendments to the pension be discussed on the basis of
shared costs.
(2) Payment of Contract Workers
The Court recommends that workers on fixed term contracts
should be paid the same salaries and have the same
relevant conditions as permanent employees doing the same
work.
(3) Continued Employment of a Contract Worker
Employment on a fixed term contract does not imply any
obligation on an employer to offer permanent work to an
employee at the termination of such a contract. The
Court does not therefore recommend that the worker
concerned be made permanent. The Court does recommend
that the terms of para 2 above apply to the worker with
effect from 1st January, 1988.
Division: Mr O'Connell Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD88682 RECOMMENDATION NO. LCR12059
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: TROCAIRE
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Claims by the Union -
(a) that secretarial staff should have the right to join the
Organisation's pension scheme after one year of permanent
employment.
(b) that the clause in the income continuance plan which
excludes pregnancy related illness be deleted.
(c) that the pay and conditions agreed between the Union and
Trocaire be applied to a project officer.
CLAIM A that secretarial staff should have the right to join the
organisation's pension scheme after one year of
permanent employment.
BACKGROUND:
2. Trocaire operates a non contributory pension scheme. The
scheme provides that members become elegible on first satisfying
the following qualifications:-
(a) Be full-time permanent executive or secretarial staff in
the Republic of Ireland.
(b) Have attained thirty years of age but not aged sixty-five
if secretarial staff employee and have not attained
sixty-five if executive staff.
(c) Secretarial staff should have completed at least five
years in the Organisation. Executive staff should have
completed at least one year's service.
The Union on behalf of the workers, claims that this arrangement
discriminates against the secretarial staff and that the same
conditions should apply to secretarial staff wishing to join the
pension scheme as applies to the executive staff. Agreement could
not be reached at local level on the issue, nor on the other
matters which are in dispute. On 22nd March, 1988 the matters
were referred to the conciliation service of the Labour Court. A
conciliation conference took place on 16th August, 1988 the
earliest date suitable for both parties. Agreement was not
reached, and on 2nd September, 1988, the matters were referred to
the Labour Court for investigation and recommendation. A Court
hearing took place in Dublin on 9th September, 1988.
UNION'S ARGUMENTS:
3. 1. The Organisation's original justification for having two
sets of criteria for entering the pension scheme was that
secretarial staff would not stay long enough in the
Organisation to justify their inclusion in the scheme. This
has not proven to be the case. Experience has shown that the
secretarial staff have tended to stay longer in the
Organisation than many of the executive staff.
2. It is unfair that entitlement to membership of the pension
scheme should be more difficult for the secretarial staff than
for the executive side. The Union asks the Court to recommend
that secretarial staff should have the right to join the
pension scheme after one year of permanent employment.
ORGANISATION'S ARGUMENTS:
4. 1. The benefits and conditions for all members of the pension
scheme are far superior to conditions in most other pension
schemes. The conditions attaching to the secretarial grades
would not be found in other schemes even at upper management
level. It should also be noted that the pension scheme is
non-contributory. Such schemes are in the minority.
2. Over the recent past, terms and conditions for the
employees of Trocaire have improved immensely. Salary levels
now compare favourably with organisations in the commercial
world. All salaries are index linked.
3. The Organisation has no guaranteed access to funds. It is
dependent upon monies from sources outside its control, i.e.
voluntary funding. It is vitally important that the
Organisation be careful about its running costs.
4. The Union's claim in this case is just another cost
increase. At no stage during these negotiations has the Union
suggested any return for the increase in costs which it has
demanded. Trocarie's concern for the conditions of its staff
is evidenced by what it has done in the past and in much the
same way, Trocaire is prepared to improve the benefits of the
pension scheme but on a shared cost basis. We would therefore
respectfully request the Court to acknowledge Trocaire's
position and recommend that the Union agree to discuss
improvements in the scheme on a shared cost basis in line with
normal conditions in the market place.
CLAIM B that the clause in the income continuance plan which
excludes pregnancy related illness be deleted.
BACKGROUND:
The Organisation's income continuance plan provides that
disablement arising from pregnancy or child birth is excluded from
benefit. The Union, on behalf of the workers, claims that the
clause concerned is discriminatory, and should be removed
immediately.
UNION'S ARGUMENTS:
5. 1. The Union has pointed out to Trocaire that this type of
clause has been found to be discriminatory under the terms of
the Anti-Discrimination (Pay) Act, 1974, (details supplied to
the Court) and that they should agree to the deletion of the
offending clause without requiring the Union to pursue a claim
to an Equality Officer. The Union requests the Court to
recommend accordingly.
COMPANY'S ARGUMENTS:
6. 1. The conditions applying to income continuance are common
under most pension schemes and are not a matter of the
Organisation's choosing.
2. The Organisation would point out that the Union's claim is
cost increasing. The Union is offering no visible return for
the proposed increase in costs, nor any explanation as to
where the increased costs are to be met from, given the
financial strictures under which the Organisation operates.
CLAIM C that the pay and conditions agreed between the Union and
Trocaire be applied to a project officer.
BACKGROUND
The worker concerned had been employed by the Organisation as a
project officer on a 2 year contract, which was scheduled to
expire on May 28, 1988. The Union claims that the pay and
conditions in her contract were different from those agreed
between the Union and the Organisation in respect of project
officers, and is in breach of the terms of their employment
agreement. The Organisation maintains that officers on fixed term
contract are not covered by the agreement. On March 25 1988, the
worker concerned in the present dispute was informed that her
contract would not be renewed. On April 28, 1988, following her
request for a renewal of contract for a six month period, the
worker was offered a contract for three months which was to expire
at the end of August. The work, pay and the conditions of
employment were the same. On August 31, 1988, the worker's
contract was terminated. The Union's claims on her behalf are as
follows:
(1) That she should be made permanent and retained in
employment, since there is still employment for her in
the Organisation.
(2) That she should be placed on point three of the project
officer scale.
(3) That she should be paid #5,650 - this being the
difference between the salary she was paid and the
salary level agreed in the Organisation/Union agreement.
(4) That she be given five days annual leave to make up for
the shortfall in her contract.
The Organisation for its part, claimed that there was a clear
distinction between permanently employed officers, who were
covered by the terms of the agreement, and those who were hired
for specified periods on agreed terms. The Organisation wishes to
retain the right to hire staff on a contract basis, on terms it
considers appropriate.
UNION'S ARGUMENTS:
7. 1. The employment agreement between the Union and the
Organisation confirms a 12 point salary scale for project
officers. The minimum point of this scale at the time of the
officer's appointment was #11,924, i.e. almost #2,000 more
than the salary she was offered. The agreement also provides
for a minimum annual leave entitlement of 22 days. The worker
was only allowed 20.
2. Management have argued that the worker's original contract
dates from May, 1986, and that the employment agreement was
not signed until December, 1986. This argument is untenable
for a number of reasons.
(a) The main provisions of the agreement had been agreed by
May, 1986. The clause on confidentiality for example,
which was included in the workers contract, was taken
from the agreement.
(b) The salaries in the agreement were to apply
retrospectively from January 1st 1986.
(c) Management did not adjust the worker's salary following
the signing of the agreement.
Management's response to the worker when the issue of her salary
and conditions was raised with them was to terminate her contract.
3. The Organisation has given conflicting reasons for having
employed the worker on a contract basis in the first instance.
At first, the Union was informed that she was employed to deal
with the emergency in Ethiopia. When it was pointed that she
was let go during the period of the Sudan emergency which she
was dealing with at that stage, the Organisation merely relied
on its right to offer fixed term contracts if they so wished.
4. The Union believes that on a purely legalistic basis its
case is unanswerable. The appointment of staff is covered by
the employment agreement, which was negotiated between the
Union and the Organisation. This agreement makes no provision
for the use of fixed term contracts. Agreement is in respect
of normal continuous contracts, subject only to a six month
probationary period.
5. The Union does not wish to argue its case on a legalistic
basis. On grounds of good industrial relations practice alone
the worker should be retained in employment. There is
sufficient work for her to do, and the Organisation has never
claimed that her work was unsatisfactory. The worker has been
most unfairly treated. She left a permanent post in order to
take up employment with the Organisation, and was led to
believe that she would be working in Africa. She was
subsequently informed that she would be based in Dublin. She
was not given a permanent job as advertised, nor the agreed
terms and conditions for a project officer.
6. The Union is concerned about the general issue of fixed
term contracts in the Organisation. It raised the issue in
March, 1988, but has not yet had a response. In addition to
its claims concerning the worker, the Union wishes to agree
the following with the Organisation in respect of any
employees recruited on a contract basis:
(a) All contract staff should have the right to be made
permanent as has been the practice in the past.
(b) Where their work is continuing, they should have the
right to be continued in their contracts.
(c) The terms of the contracts should correspond to the
employment agreement negotiated between the Union and the
Organisation.
ORGANISATION'S ARGUMENTS:
8. 1. The worker concerned was employed as a project officer on
a contract basis for a fixed term from 2nd June, 1986 to 28th
May, 1988. Two months before the expiry date of the contract,
she was informed that it would not be renewed. When she
requested an extension of her contract for a further six
months, the Organisation facilitated her by retaining her in
employment for a further three months.
2. The worker accepted her contract of employment under
certain conditions with the Organisation. At no stage during
her employment did management give an indication that her
employment would continue into permanency.
3. Contract staff were not included in the terms of the
comprehensive agreement reached at the end of 1986 and were
specifically excluded from the Agreement. (details supplied to
the Court).
4. It is managements belief that the Union's difficulties
regarding the employment of contract staff have only arisen as
a result of the issue regarding the worker. Management are
prepared to discuss the issue with the Union, provided the
latter recognise the Organisation's right to employ and select
contract staff when and where they deem appropriate.
5. The Organisation believe that the Union are seeking
something more than the workers legal entitlement, and that
this should be rejected by the Labour Court. Management has
never applied the comprehensive agreement to contract staff,
and the conditions of the comprehensive agreement have only
applied to permanent staff (details supplied to the Court).
RECOMMENDATION:
10. (1) Pension Scheme
In the light of the submissions made by the parties the
Court recommends that subject to whatever changes are
required to comply with the Equality Acts, that further
amendments to the pension be discussed on the basis of
shared costs.
(2) Payment of Contract Workers
The Court recommends that workers on fixed term contracts
should be paid the same salaries and have the same
relevant conditions as permanent employees doing the same
work.
(3) Continued Employment of a Contract Worker
Employment on a fixed term contract does not imply any
obligation on an employer to offer permanent work to an
employee at the termination of such a contract. The
Court does not therefore recommend that the worker
concerned be made permanent. The Court does recommend
that the terms of para 2 above apply to the worker with
effect from 1st January, 1988.
~
Signed on behalf of the Labour Court
John O'Connell
__________________________
6th October, 1988. Deputy Chairman
P.F./J.C.