LCR13254

Subject:
Dispute concerning the retirement age of voluntary firemen.

Recommendation:
5. The Court has considered the submissions made by both parties.
It finds that the Union's arguments relating to the Council's
method of implementing the Ministerial Order to be unsustainable
and furthermore that letters written by their legal advisor on
their behalf whilst recording a protest at the application of the
order, were a clearly unconditional acceptance of the terms for
retirement.

The Court therefore does not recommend concession of the Union's
claim.

Division: Mr O'Connell Mr McHenry Mr Devine

Text of Document__________________________________________________________________

CD91135 RECOMMENDATION NO. LCR13254

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969


PARTIES: CAVAN COUNTY COUNCIL
(REPRESENTED BY THE LOCAL GOVERNMENT STAFF NEGOTIATIONS BOARD)

and

SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION

SUBJECT:
1. Dispute concerning the retirement age of voluntary firemen.

BACKGROUND:
2. The dispute concerns two workers who were formerly employed by
the County Council as retained fire service personnel. One worker
was a station officer for thirty years and the other was a sub
station officer with twenty six years' service. The Council in a
letter to the workers dated 30th June, 1987 advised them that
Department of the Environment Circular letter E.L. 22/85
introduced a revised scheme of retirement gratuities for retained
firemen and compulsory retirement at age fifty five, that no
member of the part-time fire service should be over fifty five
years of age, and that as they were over the age limit, compulsory
retirement would apply to them with effect from 31st December,
1987. The workers at this time were aged fifty eight and fifty
seven respectively. The Union claims that the Council acted in an
arbitrary and unjust fashion in compulsorily retiring the two
workers. The Union claims that the Council's action was in breach
of the workers' conditions of employment and that the workers had
advised the Council through their legal representative that they
had accepted their retirement gratuities under protest.
Management rejected the Union's claim stating that the retirement
age limit of fifty five years had been established by Agreements
reached in 1967 and 1973 which both sides recognised. Local
discussions failed to resolve the issue. The Union requested that
the dispute be referred to the conciliation service of the Labour
Court but the Council objected to the referral. The Union then
referred the dispute to the Labour Court under Section 20(1) of
the Industrial Relations Act, 1969 and agreed to be bound by the
Court's recommendation. The Court investigated the dispute at a
hearing held in Cavan on the 26th March, 1991.


UNION'S ARGUMENTS:
2. 1. The Council has incorrectly interpreted the Circular
letter E.L. 22/85 in enforcing compulsory retirement at age
fifty five. This is also highlighted by the fact that other
adjoining County Councils applied the new regulations in a
much different manner.

2. When the workers concerned through their solicitor wrote
to the Minister for the Environment in February, 1989 they
received a letter from the Minister which stated inter alia
"that they (local authorities) could proceed and introduce
arrangements including retirement at age fifty five." It is
quite clear from this statement that this arrangement was
intended as the basis of a voluntary retirement scheme. The
final paragraph of the letter is even more supportive of this
line of argument when it states "the actual implementation of
these arrangements is a matter for each local authority."
There was, therefore, no obligation on the Council to adopt a
hard line attitude.

3. The Council has clearly infringed the rights of the
workers concerned under their contract of employment and under
the generally accepted norms in industrial relations that
there should not be unilateral changes in long established
agreements on conditions of employment.

4. The two workers involved in this claim have suffered
substantial losses and must be compensated in full for same.
The station officer would have earned a further #10,000 before
age sixty and his gratuity would also have been substantially
greater. The sub station officer, if allowed to work the
three years to age sixty, would have earned #12,000 with an
increased gratuity then being due.

5. In the light of the fact that the Council has one worker
still in the service at age sixty four and that, under the
original contract, retirement was not mandatory at sixty, the
argument can be made that these two very fit and able workers
could have continued to work long after sixty years and that
their losses should be measured accordingly.

6. The workers believe that there is also a circular from the
Department of the Environment to all County Councils advising
them that long-service workers would be exempt from any
requirement to retire under the new regulations. The Union
cannot produce the document at this point.

COUNCIL'S ARGUMENTS:
4. 1. L.C.R. 9605 issued in 1985 recommended acceptance of
Management's offer of revised gratuities and compulsory
retirement at age fifty five. Local authorities generally
implemented the terms of this recommendation following
sanction from the Department of the Environment. Department
of Environment Circular E.L. 22/85 sanctioned the revised
scheme of retirement gratuities and provided that favourable


consideration would be given to proposals to pay retirement
gratuities based on the traditional arrangements (covering
period 1st January, 1986 - 31st December, 1987) in the case of
personnel who had recently retired.


2. In 1987 there were ninety eight retained fire service
personnel in County Cavan of whom twenty four exceeded age
fifty five. To enable those over fifty five to avail of the
enhanced gratuities payable under the transitional
arrangements the Council advised all concerned by letter of
30th June, 1987 that retirement would apply with effect from
31st December, 1987.


3. By letter of 16th October, 1987 the Council advised the
personnel concerned of the gratuity payable in each particular
case and requested each individual to confirm in writing by
30th October, 1987 that they were accepting the gratuity
payable.


4. Twenty of the personnel involved wrote in person to the
Council accepting the enhanced gratuity while a solicitor,
representing the claimants here concerned, wrote on 30th
October, 1987 accepting the gratuity on their behalf albeit
under protest.


5. Nationwide more than one hundred and fifty retained fire
service personnel over fifty five retired during the
transitional period to avail of the enhanced gratuities
payable. Since then almost all retained fire service
personnel have retired on attaining the age of fifty five.


6. There are no retained fire service personnel currently
employed by Cavan County Council over fifty five years of age.
Since the retirement of the retained fire service personnel in
December, 1987 the Union did not raise the issue with the
Council until November, 1990.


RECOMMENDATION:
5. The Court has considered the submissions made by both parties.
It finds that the Union's arguments relating to the Council's
method of implementing the Ministerial Order to be unsustainable
and furthermore that letters written by their legal advisor on
their behalf whilst recording a protest at the application of the
order, were a clearly unconditional acceptance of the terms for
retirement.

The Court therefore does not recommend concession of the Union's
claim.
~

Signed on behalf of the Labour Court


John O'Connell
_______________________
19th April, 1991. Deputy Chairman
T.O'D./J.C.