FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : MARKS AND SPENCER IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal of Rights Commissioner's Decision PT9287/02/TB.
BACKGROUND:
2. The Union submitted a claim on behalf of a part-time worker who is employed by the Company as a catering assistant and works 21.25 hours per week. The Union claims that she receives less favourable treatment in respect of service pay than a full-time worker who works 37.5 hours per week. The Union maintains that she is entitled to the same rate of service pay as that paid to a full-time worker. It claims that the Company is in breach of the Protection of Employees (Part-Time Work) Act, 2001(the Act).
Management reject the Union's claim. It states that the Company pay service pay after 15, 20 and 25 years' service respectively. Management state that the claimant has only 6 years' service and is, therefore, not entitled to service pay. Part-time staff with the required service are paid service pay on a pro rata basis based on the hours they work when compared to their full time colleagues. The Company rejects the claim that it is in breach of the above Act.
The dispute was referred to a Rights Commissioner for investigation. On the 21st October, 2002, the Rights Commissioner issued his Decision as follows:-
- " As the claimant has only 6 years' service she is not entitled to be paid any service pay. Therefore the respondent could not be in breach of the legislation insofar as the payment of service pay is concerned to the claimant vis-a-vis a full-time comparator.
To pay service pay pro rata to a part-time employee based on the proportion of hours which the part-time worker works compared to a full-time employee, is in my opinion, perfectly consistent with the terms of the legislation.
There has been no breach of the legislation, therefore this complaint fails."
The Union appealed the Decision to the Labour Court on the 14th November, 2002, under Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001.A Labour Court hearing was held on the 1st May, 2003.
2. The Union position in respect of Section 10 of the Act which states that "there must be objective grounds to justify less favourable treatment. If the treatment of the part-time employee is based on the part-time status of the employee, then it is not an objective ground for less favourable treatment."3. The Company claim that full-time employees get a fixed amount of service pay. The benefit, therefore, is not dependent on the number of hours worked, but is based on the status of the part-time worker and that is not an objective ground under the Act.4. The Union believe that the Rights Commissioner could only rely on Section 10 (1) of the Act where he had demonstrated that the employer in this case was applying the same test as to the amount of service pay to the comparator as to the claimant. The Rights Commissioner did not establish this criteria.COMPANY'S ARGUMENTS:4. 1 The Company recognise long service for all staff on completion of 15, 20 and 25 years respectively. Both full-time and part-time employees accrue an entitlement to service pay on the anniversary of their date of commencement of employment. A full-time employee and a part-time employee who join the Company at the same time would both be entitled to service pay after 15 years at exactly the same time.
2. The worker concerned has 6 years' service. As service pay only accrues after 15 years' service there has been no contravention of the legislation as a comparable full-time employee would not be entitled to service pay after 6 years' service. Therefore this complaint is not well founded in accordance with Section 16 (2) of the Protection of Employees (Part-Time Work) Act, 2001.
3. Management understands that the Union's complaint is that the Company is in breach of Section 9 of the Protection of Employees (Part-Time Work) Act, 2001. The Company rejects such interpretation as put forward by the Union.
4. Section 10 (1) of the Act clearly states the extent to which any conditions of employment referred to "shall be relatedto the proportion which the normal hours of work of that employee is to the normal hours of work of the comparable full-time employee concerned."
DETERMINATION:
It is the view of the Court that the specific dispute brought before the Rights Commissioner related to a claim by a named part time worker, that she received less favourable treatment in respect of service pay than does a full time comparator who works 37.5 hours per week.
The Rights Commissioner decided that the claimant had not obtained the required years of service to qualify for service pay, and therefore, no contravention of the legislation had taken place. This part of the recommendation is accepted by the Union.
However, the Rights Commissioner went on to deal with the more general issue of pro-rata application of service pay in the case of part time workers and it is this element of the recommendation that the Union is appealing.
It is the Court's view that the wider issue in relation to the application of service pay to part time workers could not have been dealt with without substantive legal arguments from both sides.
It was clarified to the Court by the parties that at the Rights Commissioner's hearing the wider question of the application of pro-rata payment for part time workers had arisen as a result of the question being asked, but that no substantive arguments in relation to the Directive or the Legislation on part time working was made by either parties to the dispute.
The Court, therefore, recommends that the element of the Rights Commissioner's recommendation dealing with the pro-rata application of service pay for part time workers, be set aside and this issue be dealt with in the future if an appropriate case arises. Neither party should use this element of the Rights Commissioner's recommendation to support its position in the meantime.
The Rights Commissioner's recommendation to be amended accordingly.
Signed on behalf of the Labour Court
Finbarr Flood
12th May, 2003______________________
LW/LWChairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.