Labour Court Database __________________________________________________________________________________ File Number: CD91500 Case Number: LCR13559 Section / Act: S26(1) Parties: CORK COUNTY COUNCIL - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Superannuation entitlements.
Recommendation:
5. The Court gave careful consideration to the submissions,
written and oral, of the parties. The Court finds, as a matter of
fact, that the complainant discharged the function of opening and
closing the Council yard gates. The Court taking the view this
work could not be completed during normal hours considers that
certain of the overtime hours may be regarded as meeting the
criteria laid down in circular S 2/79.
The Court recommend, therefore, that the parties arrange for a
suitable application to be made to the Minister for inclusion of
such hours as may be agreed as part of the salary and wages for
superannuation purposes. In the event of disagreement between the
parties the Court is prepared to be of assistance.
Division: MrMcGrath Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD91500 RECOMMENDATION NO. LCR13559
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES: CORK COUNTY COUNCIL
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Superannuation entitlements.
BACKGROUND:
2. The worker concerned commenced employment with the Council in
1959. He retired in December, 1990. In 1961 the worker was
offered a job in the stores section. He did normal stores work
and had responsibility for the opening and closing of the Council
yard in which the store was located. As the yard opens and closes
at times which are outside normal working hours to allow for the
movement of Council plant, it was necessary for the worker to work
overtime on an ongoing basis. The Union claim that overtime was a
regular feature of his employment and, accordingly, submitted a
claim seeking to have his overtime earnings taken into account for
the purpose of calculating his superannuation entitlements. The
Council rejected the claim. The worker appealed the Council's
decision to the Department of the Environment. The Department
rejected his appeal. The worker was covered for superannuation
purposes under the provision of the Local Government
Superannuation Revision (Consolidation) Scheme 1986. Article
48(2) of that scheme provides that the Minister for the
Environment may direct that overtime payments may be regarded as
wages but the conditions specified in circular S 2/79 dated
23/5/1979 must be fulfilled. These conditions are that the work
in respect of which the overtime payments were made:
(a) was scheduled work attached to the office or employment
(i.e. the particulars of office or conditions of
employment specified that the holder of the office or
employment had to perform the particular work on an
overtime basis).
(b) was work of a regular and recurring nature (i.e.,
generally, that the particular employee was required to
perform the duties during specified hours on specified
days).
(c) was work of a kind which could only be performed outside
of, and in addition to, the normal hours of work of the
grade to which the employee belonged.
Local level discussion failed to resolve the issue and the matter
was referred to the Labour Relations Commission on 3rd January,
1991. Conciliation conferences were held on 5th March, 1991 and
18th July, 1991 and as no agreement could be reached the matter
was referred to the Labour Court for investigation and
recommendation. The Court hearing took place on 4th December,
1991.
UNION'S ARGUMENTS:
3. 1. The worker satisfied the conditions as specified in the
Department of the Environment Circular S. 2/79:
(a) "scheduled work attached to the office or
employment". The worker was clearly told that
opening and closing the Council yard gates was an
important part of his job.
(b) "work of a regular and recurring nature". The
worker was required to open and close the gates six
days of the week. His average weekly overtime
amounted to 18 hours.
(c) "work of a kind which could only be performed
outside of, and in addition to, the normal hours of
work of the grade to which the employee belonged".
The worker was required to commence work early and
stay late.
COUNCIL'S ARGUMENTS:
4. 1. No employee is obliged to work overtime by way of
conditions of employment.
2. The overtime worked by the worker was optional.
3. Numerous efforts were made to eliminate this overtime and
it has been reduced dramatically despite the worker's
objections.
4. The overtime did not meet the conditions as laid down by
the Department of the Environment in circular letter S 2/79
dated 23rd May, 1979 and, therefore, the Council is not
prepared to seek approval from the Department to have the
overtime reckoned for superannuation purposes.
5. The nature of the work involved was not of a kind which
could only be performed outside of normal hours of work.
Neither was he required to perform the duties during specified
hours on specified days.
6. Any reckoning of overtime for superannuation purposes
would have wide repercussive effects in the Council and
throughout local authorities generally.
RECOMMENDATION:
5. The Court gave careful consideration to the submissions,
written and oral, of the parties. The Court finds, as a matter of
fact, that the complainant discharged the function of opening and
closing the Council yard gates. The Court taking the view this
work could not be completed during normal hours considers that
certain of the overtime hours may be regarded as meeting the
criteria laid down in circular S 2/79.
The Court recommend, therefore, that the parties arrange for a
suitable application to be made to the Minister for inclusion of
such hours as may be agreed as part of the salary and wages for
superannuation purposes. In the event of disagreement between the
parties the Court is prepared to be of assistance.
~
Signed on behalf of the Labour Court
Tom McGrath
_____________________
19th February, 1992. Deputy Chairman
F.B./J.C.