FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : DEPARTMENT OF EDUCATION AND SCIENCE - AND - VOURNEEN GALLAGHER (REPRESENTED BY ASSOCIATION OF SECONDARY TEACHERS IRELAND) DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision PT16186/03/TB.
BACKGROUND:
2. The appeal concerns a worker who was employed in Mercy College, Sligo from 1974 to 2003 as a teacher of Home Economics. In 2001 she took up a job sharing contract working half of the class contact hours done by her full time counterparts. A scheme of supervision of pupils and substitution for absent teachers was drawn up by the Department of Education and Science, management and teacher unions. The Department issued Circular PPT/02/03 in April, 2003 which sets out the basis for payment of €1,000 which was a retrospective payment for supervision and substitution duties performed by teachers between September, 2001 and March, 2002. The claimant received €499. She wrote to the Department in June, 2003 claiming the full amount on the basis that she had done the same amount of supervision and substitution as her full time colleagues yet received only half the amount. The Department rejected the claim.The Union claimed that the Department was in breach of Section 9 of the Protection of Employees (Part-Time Work) Act, 2001,in failing to pay the claimant the same amount of money for the performance of the same amount of work as her full time colleagues. The dispute was referred to a Rights Commissioner for investigation. On the 30th October, 2003 the Rights Commissioner issued his Decision as follows:
"I uphold the complaint on the grounds that the claimant performed the same or a similar amount of work (supervision and substitution) as the named comparable full-time employee and is, therefore, entitled to the same payment. I require the respondent to pay €499.88 which is the balance due to her."
On the 10th December, 2003 the Department appealed the Rights Commissioner's Decision to the Labour Court. The Court heard the appeal on the 10 th March, 2004.
DETERMINATION:
This is an appeal by the Department of Education and Science (the Department) against the decision of a Rights Commissioner pursuant to section 17 of the Protection of Employees (Part-Time Work) Act 2001. In his decision the Rights Commissioner found that Ms Vourneen Gallagher (the claimant) had been treated less favourably than a comparable full-time teacher when she was paid half of the amount paid to that employee in respect of substitution and supervision in the year 2001/2002.
Background.
As part of the settlement of a dispute between the teacher unions and the Department in 2002, agreement was reached on a payment for substitution and supervision from the academic year 2003 onwards. The unions sought retrospection on this agreement. It appears, however, that sufficient records were not maintained so as to establish the extent to which individual teachers had undertaken these duties. Because of this the payment of retrospection was considered impractical. As an alternative the payment of a standard ex-gratia amount to all teachers who had participated in providing substitution and supervision was agreed (hereinafter referred to as “the relevant agreement”). The parties appear to have accepted that as between full-time and part-time teachers the extent to which they provided this service would be in proportion to their contract hours. Based on this assumption they further agreed that the full amount (€1,000 in the case of ASTI members) would be paid to full-time teachers and pro-rata to those with lesser contracts.
The Department's Argument
The Department argued that it was acknowledged by all parties to the relevant agreement that the level of substitution and supervision undertaken by individual teachers differed both in individual schools and between schools. Consequently, they argued, the only practical and pragmatic way of rewarding teachers for having undertaken these duties was by an ex-gratia payment. The payment was an acknowledgement that teachers had contributed to the substitution and supervision requirements of the school on a voluntary basis for 2001/2002 and was not intended to reflect the quantum of hours done by individual teachers.
The arrangements were collectively agreed in the context of a settlement of an industrial relations dispute and had regard to real and practical difficulties in administering the payments for the year in question. The arrangements agreed were not designed to discriminate against part-time teachers and did not discriminate as the payments were not based on hours spent in substitution and supervision.
The claimant's Arguments.
The claimant contended that she job-shares her teaching duties but not her post of responsibility and, significantly, her substitution and supervisory duties. Thus, she contends that she undertook the same level of substitution and supervision as a full-time teacher at the same school. She is supported in this contention by the school principal.
It is the claimant’s case that the only reason why she was paid half the amount paid to her comparator was her status as a part-time teacher. This, she contends, contravenes section 9 of the Act. The claimant further contends that the impugned arrangement cannot be saved by section 12 of the Act, since the only basis for the different treatment is the claimant’s status as a part-time worker and this cannot amount to objective justification.
Statutory Provisions.
The relevant statutory provisions are to be found in sections 9(1), 10(1) 10(2) and 12 of the Act. Regard must also be had to the wording and objectives of Directive 97/81 (The Part-Time Work Directive) which transposed into law the Framework Agreement on Part-Time Work concluded by UNICE, CEEP and the ETUC.
Section 9(1) of the Act prescribes the general right of part-time workers to equal treatment in respect of conditions of employment with comparable full-time employees. This provision gives effect to Clause 4 (1) of the Framework Agreement. Clause 4(2) of the Framework Agreement further provides that the principle of equal treatment can be satisfied by applying conditions of employment pro-rata,where appropriate. It is thus recognised that the pro-rata principle is not of universal application.
Section 10 defines what is meant by the pro-rata principle and the circumstances in which it is appropriate to apply conditions of employment to part-time workers on a pro-rata basis. This section provides as follows:
- 10.—(1) The extent to which any condition of employment referred to in subsection (2) is provided to a part-time employee for the purposes of complying withsection 9(1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable full-time employee concerned.
(2) The condition of employment mentioned in subsection (1) is a condition of employment the amount of the benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by the employee.
Conclusions of the Court.
In its submission to the Court the Department explained the background to the conclusion of the relevant agreement as follows:
“In the context of the discussions on an increased hourly rate the Teachers Side (specifically the Teachers Union of Ireland) sought payment on an exceptional basis for the 2001 / 2002 school year on the basis that full-time teachers would get the full payment for the year in question and that job-sharing and eligible part-time teachers would get payment on a pro-rata basis. This was sought on the basis that permanent teachers who had volunteered for such duties in the year in question had carried out substitution and supervision duties (irrespective of the number of hours) for the full year and that job-sharing teachers and eligible part-time teachers had carried out supervision / substitution duties on a pro-rata basis having regard to their contract teaching hours”.
It appears that whilst the Unions and the Department recognised that it would be difficult to establish the quantum of substitution and supervision engaged in by individual teachers, their agreement was predicated on the belief that in general terms full-time teachers and their part-time equivalents would have carried out these duties on a pro-rata basis. Against that background it appears to the Court that payment was based on the bona fide understanding of the parties that teachers would have undertaken substitution and supervision duties in proportion to their contract hours. Based on that understanding it further appears that the intention of the agreement was to reward both full-time and part-time teachers who opted to undertake substitution and supervision duties for what they could reasonably have been expected to do rather than what they actually did. On that scenario the agreement itself may not offend against section 9 of the Act since the basis of calculating the ex-gratia amount would be the same for both full-time and part-time teachers.
However, in the claimant's place of employment the position was different to that on which the relevant agreement was based. In a letter furnished to the Court dated 25th July 2003 the Principal of the Mercy College Sligo, stated that the system in operation in the school was that teachers either opted in or out of the rota for substitution and supervision. She expressly states that no distinction was made between full-time and part-time teachers and job-sharers and all categories did the same amount of substitution and supervision.
Hence, once the claimant volunteered for substitution and supervision duties the school in which she was employed required her to undertake the same amount of such work as her full-time comparator. It seems to the Court that this was not a type of situation contemplated by the parties to the relevant agreement.
In this case the Court considers it significant that the claimant undertook the same level of substitution and supervision duties as full-time teachers because the school did not permit her to undertake such duties on a pro-rata basis. Accordingly it could not be said that the claimant undertook additional work gratuitously and on that account she cannot draw a fair comparison with treatment of full-time teachers who were rostered for a corresponding number of hours.
The comparator volunteered to participate in substitution and supervision duties. Thereafter he was rostered for the full amount of such duties. He was paid €1,000 for the commitment thereby shown. The claimant also volunteered for substitution and supervision and was rostered for the same amount of duty as the comparator.
In these circumstances the Court is satisfied the reduction in the amount payable in her case cannot be encompassed by section 10(2) of the Act and lawfully pro rated. It follows that the claimant was treated less favourably than her comparator in terms of section 9 of the Act.
Having so found the Court must consider if the less favourable treatment afforded to the claimant could be justified on objective grounds and so saved by section 9(2) of the Act. The only grounds relied upon in that regard is the need to adhere to the relevant agreement. Section 12(1) of the Act provides that a ground cannot be regarded as an objective ground for the purpose of any provision of the Act unless it is based on considerations other than the status of the employee concerned as a part-time employee. In this case the application of the relevant agreement to the claimant resulted in her receiving a lower payment solely because she is a part-time employee. Hence, as a matter of law, this cannot constitute an objectively justifiable ground.
Determination
For all of the foregoing reasons the Court concurs with the decision of the Rights Commissioner. The appeal herein is disallowed and the decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
21stMay, 2004______________________
TOD/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.