FULL RECOMMENDATION
FT18948/04/TB SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : AER LINGUS (REPRESENTED BY ARTHUR COX SOLICITORS) - AND - A GROUP OF WORKERS (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioners Decision by the Claimants - (Fixed Term Work) Act, 2003, FT18139/04/TB and FT18948/04/TD and cross appeal by the Respondent.
BACKGROUND:
2. The dispute concerns a number of cabin crew members employed by the Company on nine month fixed term contracts. The Company advertised vacancies internally for Cabin Crew offering temporary assignments for up to nine months commencing in Spring of 2004. A stipulation requiring an applicant to have one years' continuous service in order to be eligible to apply for these posts was stipulated. The Union argue that this discriminated against the workers as fixed term employees and was in breach of Section 10 of the Protection of Employees (Fixed Term Work) Act, 2003. They further argue that contrary to the provision of Section 6 of the Act, they are treated in a less favourable manner than comparable permanent employees in as much as they were not paid sick pay when certified unfit for work nor were they paid telephone rental allowance.
The Company submitted that there was no breach of the Fixed Term Work Act, 2003 as the claimant's contracts expired without being renewed, and permanent staff were transfered on internal temporary assignments as cabin crew. They also submit that fixed term workers were treated precisely the same as permanent workers in relation to the temporary cabin crew vacancies which were advertised. The requirement of one years service applied equally to both categories of employees. The Company also state that the Fixed Term Work Act, 2003 gives no right to a fixed term worker to have his/her contract renewed even where the employer has an ongoing requirement for work of a similar type to be performed and where that work is performed by other employees already in the employment of the Company. The Company stated that any sums due to the workers in respect of sick pay and telephone allowance have since been paid to them.
The matter was referred to a Rights Commissioner for investigation and recommendation. His decision issued on the 16th August, 2004, as follows:
“I uphold the complaint that the respondent Company was in breach of Section 6(1) of the Protection of Employees (Fixed Term Work) Act, 2003 in that it failed to apply to the claimants, at the time of their employment, the arrangements on the telephone rental and sick pay that applied to the permanent staff.
I award each of the claimants €500 compensation.
For the reasons outlined above I disallow the complaint that the requirement of one year’s continuous service to be eligible to apply for temporary vacancies as Dublin based Cabin Crew was in breach of the legislation”.
On the 15th September, 2004, the claimants appealed the Rights Commissioner’s Recommendation and on the 27th September, 2004 the Companyappealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work ) Act, 2003. A Labour Court hearing took place on the 13th January, 2005.
DETERMINATION:
At the hearing before the Rights Commissioner the first and second named group of claimants had separate representation and separate hearings were held by the Rights Commissioner. At the hearing of the appeal both groups were represented by IMPACT (the Union) and a single hearing was held. In these circumstances the Court decided to issue a single determination in respect of all claimants as the net issues for determination in all cases are the same.
The claimants were employed by the respondent as members of cabin crew on fixed term contracts of nine months duration. These contracts expired, without being renewed, on various dates between 13th December 2003 and 6th March 2004. On or about the time on which these fixed-term contracts expired the respondent had vacancies for temporary cabin crew positions. These vacancies were advertised with a stipulation that candidates must have at least 12 months service with the respondent. At the time the respondent was undertaking a major reorganisation of its operations and an appreciable number of staff posts were being made redundant. Permanent members of staff whose jobs became redundant were being offered opportunities for redeployment within the Airline. While the positions were advertised as temporary, those appointed to them, who were considered suitable, were subsequently made permanent.
The Union on behalf of the claimants contended that the respondent infringed various provisions of the Protection of Employees (Fixed-Term Work) Act 2003 in not renewing their contracts in circumstances where there was a continuing requirement for the work which they performed. It was further contended that the respondent also infringed the Act in stipulating a condition for access to the advertised vacancies which the claimant, by reason of the duration of their fixed term contracts, could not fulfil.
Having considered the submissions made to it the Court has reached the following conclusions:
Non- Renewal of Fixed-Term Contract
The claimants contend that on its correct construction Section 9 of the Act requires an employer to renew a fixed term contract where there are objective grounds for such a renewal. The Court is satisfied that this contention is based on a misinterpretation of the Section. The effect of Section 9 is to provide that where a fixed-term worker has completed his or her third year of continuous employment, the fixed term contact may only be renewed once and for no more than 12 months. An exception to this restriction is contained at Section 9(4) of the Act where the further renewal of the contract is justified on objective grounds. Thus, Section 9, where it is applicable, applies to the renewal of a fixed-term contract and not to its termination. On this basis Section 9 could have no application to the present case.
Opportunities to Apply for Vacancies
In the course of the hearing the Union referred to a number of vacancies which arose within the respondent airline of which, it is alleged, the claimants were not informed in breach of Section 10 of the Act. In the case before the Rights Commissioner the only vacancies relied upon by the claimants in pursuing this aspect of their complaint were in respect of cabin crew positions advertised in December 2004. In this appeal the Court only has jurisdiction to consider alleged infringements of the Act which were referred to and adjudicated upon by a Rights Commissioner. There was no complaint before the Rights Commissioner alleging that the respondent failed to inform the claimants of vacancies elsewhere in the airline. Consequently, the Court cannot deal with these alleged later infringements of Section 10(1) of the Act.
In relation to the cabin crew vacancies the notice advertising the vacancies was posted in the normal way and in a manner which complied with Section 10(2) of the Act. However, the stipulation of a 12 month service qualification for these posts had the practical effect of confining the competition to permanent staff since all fixed-term employees had less service than that stipulated.
The Union contended that the claimants had a right under the Act to apply for the disputed vacancies. They relied on Section 6(3) of the Act which provides as follows:
(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.
In the Court’s view the claimants are contending for a right of access to the disputed posts. That is not a condition of employment within the meaning of Section 6 in the sense that the qualifications for the post are determined by the contract of employment in the case of either fixed-term or permanent employees (see Judgment of Blayney J inD.S. O'Cearbhaill and others v. Bord Telecom �ireann[1994] E.L.R. 54.It follows that Section 6(3) cannot avail the complainants.
The claimants also relied upon the provision of Section 10(1) of the Act in support of their claim. This Section provides:
- 10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.
The Union contended that the effect of this subsection is to give fixed-term employees a right to compete for all vacancies and that the imposition of the service qualification in this case effectively denied the claimants that right. The subsection does not provide in clear or express terms that the obligation to inform fixed-term employees of vacancies carries a concomitant proscription of service or other qualifications which can be more easily be met by permanent rather than fixed-term employees. The Union submitted that such a prohibition must be implied in order to give the subsection a practical meaning.
The respondent submitted that what is at issue in this case was not the filing of vacancies in the sense that the number of permanent employees would increase or that existing temporary employees or new employees would be appointed to permanent posts. It pointed out that the number of permanent positions overall was being significantly reduced and that displaced permanent employees were being redeployed to positions which became available in other areas. As a consequence of cabin crew members having accepted voluntary redundancy, and the non-renewal of the contracts of fixed-term employees, opportunities for redeployment into cabin crew positions became available to displaced members of its permanent staff. On this basis the respondent submitted that no vacancies for permanent positions in fact existed.
Observations of the Court
When read as a whole the subsection is capable of at least two viable meanings. It could mean that fixed-term employees have a right to information concerning vacancies for which they are qualified to apply without restricting the right of an employer to determine what those qualifications are to be. It could also mean that fixed-term employees have an absolute right to access all vacancies arising in the undertaking and that any measure which directly or indirectly limits that right must be rejected.
The Statute was enacted to transpose in domestic law Directive 1999/70 implementing the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP of 18th March 1999 (the Agreement). Its construction must, therefore, be determined schematically so as to produce the result envisaged by the Directive. This involves looking at the Act and the Directive as a whole so as to ascertain the true legislative intention.
In that regard an examination of the relevant provisions of the Agreement is helpful in shedding some light on the legislative intention. The purpose of the Agreement is set out in clause 1 as follows:-
- “Purpose
the purpose of this framework agreement is to:
(b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.
What is involved in applying “the principle of non-discrimination” is particularised at clause 4 as follows:-
- “Principle of non-discrimination (clause 4)
2. Where appropriate, the principle of pro rata temporis shall apply.
3. The arrangements for the application of this clause shall be defined by the Member States after consultation with the social partners and/or the social partners, having regard to Community law and national law, collective agreements and practice.
4. Period-of service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length of service qualifications are justified on objective grounds.”
Section 6 of the Act transposes this clause.
Paragraph (b) of clause 1 of the Agreement (measures against abuse) is transposed by Sections 8 and 9 of the Act.
Significantly, the provisions regarding the principle of non-discrimination and the measures against abuse are applicable subject to there being no objective grounds justifying their non-application.
Section 10 is based on Clause 6 of the framework Agreement which provides:-
- Information and employment opportunities (clause 6)
2. As far as possible, employers should facilitate access by fixed-term workers to appropriate training opportunities to enhance their skills, career development and occupational mobility.
The requirements of this clause are not an express component of the principle of non-discrimination nor are they measures to prevent abuse, within the meaning of clause 1 of the Agreement. It should, therefore, be regarded as a provision supplementary to the expressed purpose of the Agreement as set out in clause 1. Yet, unlike the provisions relating to the principle of non-discrimination and measures to prevent abuse, clause 6 (1) (or Section 10 (1)) does not appear to admit of any exceptions.
If, as was contended by the Union, this Section means that fixed-term employees have a right to compete for all permanent positions it would be difficult to comprehend why the Legislators would not have intended that the right would be qualified in the same way as the key provisions relating to the principle of non-discrimination and the application of measures against abuse are qualified. In that regard it is also significant that paragraph 2 of clause 6 provides that the right of fixed-term workers to access appropriate opportunities training is only applicable as far as possible. Thus it would appear that in every other respect rights relating to employment which are conferred on fixed-term workers by the Agreement are in some way qualified.
The Court accepts that the wording of Section 10(1) of the Act and Clause 6 of the agreement indicates that fixed-term employees have an entitlement to compete for available vacancies within an undertaking. However, the Court cannot accept, on a reading of the Agreement as a whole, that this is an unqualified and unconditional right admitting of no exceptions and not subject to a defence based on objective justification.
In the instant case the respondent was engaged in a process of seeking to redeploy long serving staff in a situation of redundancy in which significant severance payments had been agreed with the relevant Unions. In these circumstances the imposition of the service qualification of 12 months for the disputed posts, applicable to all staff regardless of their status, was, in the Court’s view, reasonable and objectively justified.
While the matter is not entirely satisfactory or without doubt, the language of Section 10(1), interpreted in the context of the wording and purpose of the Directive, cannot be construed as precluding the respondent from applying a service qualification in the circumstances of this case. Accordingly the Union's appeal cannot succeed.
The respondent’s appeal
The Rights Commissioner found that the respondent contravened the Act in treating the claimants in a less favourable manner than comparable permanent employees. He awarded each of them €500 in compensation. The respondent contended that the claimants had failed to name a comparator or comparators whom they claim to be comparable permanent employees and that this omission is fatal to their claim for relief. The respondent further contends that the claimants failed to seek the payment to them of telephone allowance and sick pay before initiating their claim. It was also contended that the Rights Commissioner failed to call or hear any evidence from the claimants concerning the amounts due to them and that the compensation awarded cannot be just and equitable.
In the Court’s opinion none of these submissions have merit. It is not denied that permanent cabin crew, who are engaged in identical work to that of the claimants, received telephone allowance and sick pay and that the claimants did not. The Rights Commissioner and the Court should be concerned with the substance of a complaint rather than with the form in which it is presented. In this case it is accepted that all permanent cabin crew, who are comparable permanent employees within the meaning of Section 5(1)(a) of the Act, receive the benefits claimed. In these circumstances the claim could not be defeated by a failure to formalistically name an individual comparator. Moreover, there is no requirement under the Act for a claimant to raise a contravention of the Act with his employer before presenting a complaint to a Rights Commissioner. While it may be good practice to do so it is not a condition precedent to the exercise of jurisdiction under the Act. Finally, Section 14(1)(d) allows a Rights Commissioner to award compensation which is just and equitable by way of redress for an infringement of the Act. Such compensation need not be based on economic loss. The Court is satisfied that the amount awarded by the Rights Commissioner is not excessive.
In the circumstances of this case the Court is satisfied that the conclusions reached and the compensation awarded by the Rights Commissioner is fair and equitable and should be affirmed.
Determination.
The appeal by the Claimants and the cross-appeal by the Respondents against the decision of the Rights Commissioner that their claim in respect of the recruitment process is not well founded, are disallowed. The decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
8th April, 2005______________________
JBKevin Duffy
Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.