Labour Court Database __________________________________________________________________________________ File Number: CD90617 Case Number: LCR13163 Section / Act: S67 Parties: THE RACING BOARD - and - THE RACING BOARD (TOTE) EMPLOYEES ASSOCIATION |
Claim by the Association for a compensation payment to tote employees whose contracts of employment are not renewed at age 65.
Recommendation:
5. Having examined in detail the submissions made by the parties
the Court considers that, despite the counter claim of the
Association, an agreement was reached between the parties in 1987
regarding the retirement of Tote Casual Staff at age 65. The
Court further considers that the agreement was not a matter of
serious concern to the Staff or the Association at that time
because it would not come into effect for a further two years and
because there was a wrong impression that the majority of staff
would be given extensions of employment. It was only in late
1989, just prior to the first compulsory age-related retirements,
that the Association seemed to grasp the implications of the
situation.
While acknowledging that the Board has no agreed obligations to
the staff retiring at age 65, the Court cannot but be impressed by
the long and no doubt effective service of the staff being
retired. Of the 31 scheduled for retirement on 31st December,
1989, 29 had service of 20 years or over, 17 had 30 years or over
and 13 had 40 years or over. Even allowing for the unique nature
of the employment, this is impressive service which the Court
considers worthy of some form of ex-gratia recognition
particularly as those involved had, prior to 1988, understandable
expectations of longer employment.
In light of the uniqueness of this employment and the particular
cirucmstances of older staff the Court recommends as follows:-
1. That to staff with a minimum of 20 years service who were
compulsorily retired at age 65, (or over) on 31/12/89 the
Board pay an ex-gratia amount of #20 per year of service.
2. That these terms apply to serving casual staff who are 60
years of age or over on 31st December, 1990 and who will be
retired at age 65.
3. That the Board have no further obligations to staff arising
from the requirement to retire at age 65.
4. That the Association accept these terms in full and final
settlement of its claim.
Division: CHAIRMAN Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD90617 RECOMMENDATION NO. LCR13163
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: THE RACING BOARD
and
THE RACING BOARD (TOTE) EMPLOYEES ASSOCIATION
SUBJECT:
1. Claim by the Association for a compensation payment to tote
employees whose contracts of employment are not renewed at age 65.
BACKGROUND:
2. 1. The Racing Board is a semi-state body set up under the
Racing Board and Racecourses Act, 1945. One of its functions is
the operation of a totalisator for pool betting at the 25 horse
racecourses throughout the country. Approximately 240
race meetings are held each year over 220 different racedays. In
staffing the meetings Management of the Board supplement permanent
staff (approximately 50) with staff drawn from a panel of
part-time workers (approximately 310). The number of part-time
workers called for on any particular day is determined by
Management based on expected attendance and turnover levels for
each individual race meeting. The principal function of casual
workers is the operation of the totalisator.
In 1987, Management of the Board advised the Association of its
intention to introduce a retirement age of 65 years for all
part-time workers. Following discussions between both parties in
September, 1987, the Board informed the Association that:-
(1) All new employees would retire at age 65.
(2) All present staff 62 years of age or under on 17 June,
1987, would retire on their 65 birthday; and
(3) All staff 63 years of age or more on 17th June, 1987
would retire on 31st December, 1989.
The Board regarded the arrangement for retirement as agreed and
included it in the workers 1988 conditions of employment
contracts. The Association in the course of discussions with the
Board in early 1990, raised the issue of retirement at age 65. It
stated that no agreement had ever been entered into on the matter.
In March, 1990, the Association made a claim for compensation
because of the Board's proposed decision to terminate members'
contracts of employment upon their reaching age 65. Following
local discussions on the issue the dispute was referred to the
Conciliation Service of the Labour Court on 23rd April, 1990.
Following further local negotiations it was the subject of a
conciliation conference on 24th October, 1990. During the
conciliation conference the claim was totally rejected by the
Board. The Association requested a full Labour Court hearing.
The Board agreed but indicated that it would not be available to
attend at a hearing for one month. The Court investigated the
dispute on 27th November, 1990.
ASSOCIATION'S ARGUMENTS:
3. 1. All members were recruited on the basis that there would
be no upper age level cessation of employment. The Board's
decision to retire part-time workers at age 65 was arrived at
arbitrarily, unilaterally and without agreement. The workers have
given long, loyal and exemplary service ranging up to and in some
cases over 40 years. They could legitimately expect to earn on
average up to #30,000 between the age bracket of 65-75. The
workers who are aged in or about 65 and over are aggrieved by
being confronted with unlawful termination of their contracts
and/or wrongful/unfair dismissal.
2. Many of the part-time workers are deprived of seeking
compensation under the various Acts such as :-
(1) The Redundancy Payments Acts 1967 to 1984.
(2) The Unfair Dismissals Act, 1977.
(3) Minimum Notice and Terms of Employment Act, 1977
to 1984.
This is due mainly to unfair constraints placed on them requiring
part-time workers to meet the qualifying standards under the
respective Acts, despite making Social Welfare and P.A.Y.E.
contributions from their Racing Board earnings.
3. Part-time workers should be compensated for the non-
renewal of their employment contracts after age 65 based on the
principle established in Labour Court Recommendation 9605 and
confirmed by Labour Court Recommendations 10642 and 12292.
Gratuities should be calculated on (A) years of service (B)
part-time workers achieving 65 years of age and (C) 1/10th of an
inclusive annual retainer or equivalent of #1,600 in the final
year of service for each year up to age 65 years. Service after
65 years of age should also be included in calculations.
4. Permanent workers are compensated on their ceasing
employment at age 65. This further substantiates the claim for
compensation for part-time workers. On attaining age 65 permanent
workers receive -
(1) a lumpsum payment of one and a half years salary plus
(2) a yearly pension equal to half annual salary.
Part-time workers in Local Authority Services receive a maximum of
one and a half times annual pay after 47 years of service.
Recognition for years of service must be given to all workers in
part-time employment.
BOARD'S ARGUMENTS:
4. 1. The nature of casual employment in the Racing Board is
unique and cannot be compared directly to other part-time or
casual work. Employment is on a day-to-day basis. At the start
of each year, workers on the casual staff panel advise the Board
of the days on which they are available. Using the availability
details the Board notify selected individuals of a request for
their attendance at a specific race meeting. Even though the
casual worker has notified the Board of his availability, there is
no compulsion for him to attend the particular race meeting
following such a request. There is no guarantee of any specific
number of days' employment for any member of the casual staff
panel. The average number of race meetings worked by each member
of the panel in 1989 was 39. The average working time involved in
a given race meeting is 4 hours. Specific conditions of
employment under which casual staff are employed are set out for
each year following consultation between representatives of
Management and the Association. Copies of the annual conditions
are sent to each individual member of the panel who, in turn, sign
an acceptance form accepting conditions for the next twelve
months.
2. In June, 1987, the Association was informed of
Management's intentions of initiating discussions on the
retirement of all casual workers at age 65. Following discussions
with the Association in September, 1987 agreement was reached on
the proposal, subject to acceptance by the Board of a condition
that in certain circumstances it would consider the extension of
an individual's service who, even though being over 65 years, is
deemed to merit further employment. The Board agreed to consider
individual applications for employment after age 65, subject to
ability to work to a sufficiently high standard and to the fact
that each application would be considered on its merits on an
annual basis. Notes from the meeting of September, 1987 include
the following:-
"It was agreed that:
(i) All new intakes will retire on reaching
their 65th birthday.
(ii) All staff 62 or under on the 17th June,
1987 will retire on their 65th birthday;
and
(iii) All staff 63 or over on the 17th June, 1987
will retire on 31st December, 1989".
Following the agreement, a new clause concerning the retirement
issue was included in the 1988 conditions/contracts of employment.
Each individual member of the casual staff panel signed and
returned an acceptance form agreeing to be bound by the conditions
contained in their contracts.
3. The Board was surprised when the Association, early in 1990
raised the issue of retirement at age 65. When it was pointed out
to the Association that there had been formal agreement on the
matter in 1987 it contended that no such agreement had ever been
entered into. Despite numerous meetings, correspondence, a Labour
Court conciliation conference and a full Court hearing during 1988
and 1989 concerning issues of pay and conditions, no reference was
ever made to the fact that the agreement on retirement at age 65
was unacceptable. In a letter of 13th September, 1989, the
Secretary of the Association requested the names of workers who
were due to retire at 31 December, 1989, so that the Association
could remind them of the procedure for applying for an extension.
Applications were received from 31 casual workers in December,
1989/January, 1990, for an extension of service. Six applications
were approved resulting in a one-year extension for six
individuals.
4. The Board's decision was not arrived at arbitrarily,
unilaterally and without agreement. Given that all casual workers
agreed in writing (1988 contracts) to retire at age 65, it is
difficult to understand how they could anticipate earnings of up
to #30,000 between the age of 65-75 years. The Board disagrees
that average annual earnings for individuals are in the region of
#3,000. Given that in the past there were limitations on the
tasks capable of being performed by those over 65 years it is
reasonable to conclude that the average annual earnings of such
personnel would be less than #1,100, which is the current average
annual individual earnings.
5. There is no question of unlawfully terminating or unfairly
dismissing the workers concerned, knowing that they do not come
within scope of the various Acts protecting workers' rights. It
is not correct to claim that the workers do not come within scope
of the various Acts because of unfair constraints requiring them
to meet qualifying standards. The simple fact is that the
legislation does not apply to workers who are over 65 years of
age.
6. In claiming compensation the Association has quoted various
Labour Court Recommendations in support of its claim. Two of the
Recommendations quoted refer to claims on behalf of part-time
firemen, for an increase in an established ex-gratia payment on
compulsory retirement at age 55. There is no similarity
whatsoever between those claims and the claim presented by the
Association. Another claim referred to the payment of an ex-
gratia sum to full time employees - again the comparison is
obviously without validity.
RECOMMENDATION:
5. Having examined in detail the submissions made by the parties
the Court considers that, despite the counter claim of the
Association, an agreement was reached between the parties in 1987
regarding the retirement of Tote Casual Staff at age 65. The
Court further considers that the agreement was not a matter of
serious concern to the Staff or the Association at that time
because it would not come into effect for a further two years and
because there was a wrong impression that the majority of staff
would be given extensions of employment. It was only in late
1989, just prior to the first compulsory age-related retirements,
that the Association seemed to grasp the implications of the
situation.
While acknowledging that the Board has no agreed obligations to
the staff retiring at age 65, the Court cannot but be impressed by
the long and no doubt effective service of the staff being
retired. Of the 31 scheduled for retirement on 31st December,
1989, 29 had service of 20 years or over, 17 had 30 years or over
and 13 had 40 years or over. Even allowing for the unique nature
of the employment, this is impressive service which the Court
considers worthy of some form of ex-gratia recognition
particularly as those involved had, prior to 1988, understandable
expectations of longer employment.
In light of the uniqueness of this employment and the particular
cirucmstances of older staff the Court recommends as follows:-
1. That to staff with a minimum of 20 years service who were
compulsorily retired at age 65, (or over) on 31/12/89 the
Board pay an ex-gratia amount of #20 per year of service.
2. That these terms apply to serving casual staff who are 60
years of age or over on 31st December, 1990 and who will be
retired at age 65.
3. That the Board have no further obligations to staff arising
from the requirement to retire at age 65.
4. That the Association accept these terms in full and final
settlement of its claim.
~
Signed on behalf of the Labour Court
Kevin Heffernan
18th January, 1991 ----------------
A McG/U.S. Chairman