FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DEPARTMENT OF DEFENCE - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation IR 7623/02/FL.
BACKGROUND:
2. The worker was employed in an unestablished capacity as a Range Attendant at the Civil Defence School, Phoenix Park from 29th March, 1982 to 20th February, 2002 when he retired at age sixty-six.
The Union states that for twelve years up to his retirement the claimant worked eighteen hours regular overtime per week. The Union claims that this overtime should have been factored into his lump sum and pension entitlements when he retired.
Management rejected the Union's claim. It states that the rules of the Non-Contributory Pension Scheme for Non-Established State Employees specifically exclude overtime payments for the calculation of pension entitlements.
The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 3rd December, 2002, the Rights Commissioner issued his Recommendation as follows:-
"I recommend that the earnings from the working of 8 hours overtime per week, including the appropriate premium, should be factored into the calculation of the claimant's pensionable pay, and that his pension should be adjusted accordingly".
Management appealed the Recommendation on the 13th January, 2003 in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 6th March, 2003.
MANAGEMENT'S ARGUMENTS:
3. 1. The matter of pensionability of overtime is a major issue for the public service. It has been the subject of claims before the Labour Court in the past which have not been upheld by the Court.
2. The worker's pension was awarded under the Non-Contributory Pension Scheme for Non-Established State Employees. Under the rules of the pension scheme overtime is specifically excluded when calculating pension entitlements.
3. Even in the few exceptional cases where pensionability of overtime is allowed, the overtime is not just regular and rostered, but it also must be compulsory.
4. The claimant worked overtime at his own request. The overtime was not compulsory and was never a condition of his employment as a Range Attendant.
5. Concession of the claim could have major implications for the public service. The overtime bill for 2002 was in excess of €200 million which could, if pensionable, add a further €30 million to the annual pensions bill.
UNION'S ARGUMENTS:
4. 1. The regular overtime worked should have been taken into consideration when the worker's lump sum and pension entitlements were being calculated.
2. There is a well established precedent within Government Departments affiliated to the National Joint Industrial Council (NJIC) and local authorities for the inclusion of regular overtime in calculating pensions.
3. The worker had a real expectation that his overtime would be calculated for pension purposes and natural justice would dictate that this should be so.
4. The worker's pension after 20 years' service is small, €43.96 per week. The inclusion of his overtime, as recommended by the Rights Commissioner would increase his lump sum payment and increase his pension to approximately €74.38 per week.
DECISION:
The Court has considered the submission of both sides to the employer's appeal of the Rights Commissioner's recommendation. Having examined in detail the appellant's overtime working arrangement and the rules of theNon-Contributory Pension Schemefor Non-Established State Employees,the Court is satisfied that overtime payments are specifically excluded as reckonable emoluments for pension purposes. The Court is also satisfied that the overtime worked by the claimant was not compulsory and was not a prerequisite of his post.
Consequently in accordance with the rules of the scheme the Court upholds the employer's argument that overtime payments earned by the appellant are not reckonable for pension purposes.
The Court overturns the Rights Commissioner's recommendation and upholds the employer's appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th March, 2003______________________
LW/BRDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.