FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : OFFICE OF THE HOUSES OF THE OIREACHTAS - AND - A WORKER (REPRESENTED BY NATIONAL UNION OF JOURNALISTS) DIVISION : Chairman: Mr McGee Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Payment in full of all entitlements allegedly outstanding.
BACKGROUND:
2. The dispute concerns a worker who was employed as a Press Officer assigned to Fine Gael from June, 1999 to February, 2003. His position was provided to the party under the Secretarial Assistance Scheme and paid for by the Department of Finance. Under the scheme non-office holding members of the Oireachtas are entitled to secretarial facilities. Staff employed under the scheme, either on contract to the party or to an individual member are paid by the Office as an agent for the party or individual member. In the run up to the General Election in 2002 the Minister for Finance and SIPTU reached agreement on a Voluntary Early Retirement scheme (VER) for Secretarial Assistants who could not secure a contract in the new Dail that would be formed after the election, or who by retiring would create vacancies to which redundant secretarial staff, wishing to remain in employment, could be appointed. Under the terms of this agreement staff had until 28th June, 2002 to apply for the VER package. Following the General Election of May, 2002 FG returned a significantly reduced number of members to the Oireachtas. The Union maintains that the claimant provisionally applied for the VER together with other employees and that, although he left the employment in February, 2003 he was entitled to be paid the terms of the VER scheme. Management rejected the claim. On the 7th July, 2004 the Union submitted a complaint to the Labour Court under Section 20 (1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Court hearing was held on the 26th October, 2004.
UNION'S ARGUMENTS:
3. 1. The claimant applied for the VER in the time allowed. It was only upon application for the entitlement did the claimant learn that the VER had conditions attached. It is the duty of Management to ensure that the parties concerned are aware of any conditions attached to such a scheme. The Office failed to communicate vital information to staff. It is even questionable as to whether the Department of Finance withdrew the VER. This lack of information has had a serious impact on staff who are required to make important career decisions affecting their future employment. Management has not produced any evidence to show that staff were made aware that the scheme was no longer in operation.
2. The terms and conditions that were retrospectively introduced on the VER scheme have, to the Union's knowledge, only affected the claimant.
3. One other member of staff who made application on the same provisional basis as the claimant left employment in August, 2002 and secured the full VER entitlement .
4. When the claimant was working a week to week contract he implicitly understood that he would have to seek new permanent employment. He was not offered a renewed contract at any time before he left the employment. Staff in similar posts to the claimant were not offered new contracts until June, 2003.
5. The claimant believed that his application was accepted in good faith and was surprised to find that when he went to take up the offer the Department had withdrawn the scheme.
MANAGEMENT'S ARGUMENTS:
4. 1. The terms of the VER were laid down by the Department of Finance. It was consulted on the entitlement of the claimant to a VER payment. The Department confirmed that he had no entitlement.
2. If the claimant did not intend to seek a contract in the Dail post the 2002 General Election he should have exercised his option for a VER and come off payroll on the 28th June, 2002. A number of his colleagues did so. There is no provision whereby those who resign on a voluntary basis are entitled to a VER payment.
3. The worker who received a VER payment (referred to by the Union) was in fact working out her annual leave in August, 2002.
4. Given that a decision had not been made on the level of resources that would be made available to the Fine Gael party and the deadline of 28th June, 2002 for the VER, Management met with party staff on 26th June, 2002 in relation to this difficulty. Staff enquired if they could make application for the VER, if the number of posts allocated to the party meant they would be made redundant. Management secured agreement with the Department of Finance to retain these staff on the payroll pending a decision by the Minister on the number of posts being allocated to the party. Staff were advised that in order to ensure they would not lose entitlement to the VER payment after the deadline set, if it subsequently transpired they would be made redundant, to make a provisional application by 28th June, 2002 which they could later withdraw if the numbers allocated to the party meant they would not be made redundant. As at 28th June, 2002 Fine Gael were not in a position to offer the claimant and his colleagues, who were also in that position, a contract. This remained the case until the party were notified of their numbers.
5. In allowing the staff in question to make application for a VER, the Office was not granting an open opportunity to the staff in question to apply for a VER at any time in the future. It was a pragmatic way of ensuring that staff, whose preference was to stay in the party's employment, did not have to retire in advance of learning whether jobs would be available, simply out of fear of losing benefits of the VER payment if sufficient jobs did not materialise.
6. As the party received a sufficient number of posts so as to offer contracts to all those who had submitted provisional applications for the VER (including the claimant), the issue of payment of a VER did not arise.
RECOMMENDATION:
An original deadline of June, 28th 2002 was set for those staff members who wished to apply for the VER Package. This was extended until such time as Fine Gael received an indication of the actual staffing. This happened towards the end of October, 2002. Mr Kelly did not, unlike his colleagues, come off the payroll either in June or October of 2002 but instead resigned in January, 2003. The Court, therefore, agrees that the question of a VER payment does not arise and recommends accordingly.
Signed on behalf of the Labour Court
Raymond McGee
26th November, 2004______________________
TOD/BRDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.