FULL RECOMMENDATION
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : SCOIL IOSAGAIN - AND - MARTIN HENDERSON DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision FT17376/03/TB.
BACKGROUND:
2. The claimant is a qualified teacher who secured an Honours B.A.Degree from NUI Galway and subsequently a Postgraduate Certificate in Education from the University of Wales. He was then granted provisional recognition in this jurisdiction by the Department of Education and Science. Since the claim commenced the claimant has passed all the requisite Irish language examinations.
In June 2003, while at a Board of Management function the claimant learned that six positions had been advertised in a national newspaper on the 29th May 2003. The claimant had not been informed that the advertisement would be inserted nor was his attention drawn to the fact that there were vacancies, nor was a notice posted on the staff notice board about this.
The day after he learned of the vacancies he approached the Principal who indicated that he could not get an interview at that stage because there were rules and regulations to be adhered to.
The claimant, on investigating the rules and regulations in respect of appointments, confirmed that under Department of Education and Science procedures he should have been informed of the vacancies.
The claimant subsequently became aware of the provision of the Protection of Employees (Fixed-Term Work) Act, 2003, where at Section 10(1) it states"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".This Act came into force in July 2003 at a time when the claimant had a contract of employment with the school which ran until the end of August of that year.
The matter was referred to a Rights Commissioner for investigation. His decision issued on the 19th July, 2004 as follows:
"The matters of which the claimant complains occurred before the enactment of the legislation in July 2003.
On the grounds that I do not have jurisdiction prior to the enactment of the legislation the complaint fails."
On the 27th August, 2004 the worker appealed the Rights Commissioner Decision 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 9th March, 2005.
DETERMINATION:
The complainant is a teacher. The respondent is the Board of Management of a national school located in Buncrana Co Donegal. The complainant was employed by the respondent on a fixed-term contract between August 2002 and August 2003.
On or about the month of May 2003 the respondent placed an advertisement in a national newspaper seeking applications for six permanent teaching posts. The complainant contends that he was not advised of these vacancies and that he did not see the advertisement. It is contended by the Irish National Teachers Organisation (INTO) on behalf of the complainant that the respondent’s failure to inform him of these vacancies constituted a contravention of Section 10(1) of the Protection of Employees (Fixed-Term) Work Act 2003 (the Act). In the alternative it is contended that it constituted a contravention of Clause 6(1) of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP of 18th March 1999 which was implemented by and annexed to Directive 1999/70/EC (the Directive).
The Act became law on 14th day of July 2003. The latest date on which the state was required to implement the Directive was 10th July 2002. The complainant contends that by application of the doctrine of direct effect of Community law he is entitled to rely on the Directive in the within proceedings.
The complainant presented his complaint to a Rights Commissioner pursuant to Section 14 of the Act. The Rights Commissioner held that he lacked jurisdiction to investigate the complaint. The complainant appealed to the Court
Conclusions of the Court
Clause 6 (1) of the framework Agreement annexed to the Directive provides as follows:
- Information and employment opportunities (clause 6)
1. Employers shall inform fixed-term workers about vacancies which become available in the undertaking or establishment to ensure that they have the same opportunity to secure permanent positions as other workers. Such information may be provided by way of a general announcement at a suitable place in the undertaking or establishment.
Section 10 of the Act is expressed in almost identical terms as follows:
- 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.
(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.
Doctrine of Direct Effect.
One of the tenets of Community law laid down by the European Court of Justice in C-26/62Van Gend en Loos v Nederlandse der Belastingen[1963] ECR 1, is that the Community constitutes a new legal order that confers rights on individuals which national courts must protect without the need for implementing legislation in the Member States. In C-148/78Pubblico Ministero v Ratti[1979] ECR 1629 the Court further decided that where a provision of Community law is unconditional and sufficiently precise it can produce direct effect and can be relied upon by individuals in their national Court’s in asserting legal rights. A measure is unconditional if it is not subject, in its implementation or effect to the taking of any measure either by the institutions of the Community or by the Member States. It is sufficiently precise if the obligation which the provision imposes is set out in unequivocal terms (see C-236/92Comitato di Coordinamento per la Difesa della Cava and others v Regione Lombardia and Others[1994] 1-483).
The earlier jurisprudence of the ECJ on the doctrine of direct effect related to Treaty Articles and Regulations. In a later line of authorities starting with C –41/74Van Duyn v Home Office[1974] ECR 1337 the ECJ held that, subject to certain conditions, a Directive could be independently relied upon by an individual before a National Court. The conditions identified as being necessary before a Directive can have direct effect are:
1. The relevant provision must be unconditional and sufficiently precise,
2. The time limit for implementing the Directive must have expired without the relevant part of the Directive being correctly and completely implemented into the law of the Member State,
3. The action must be against the State.
The requirement that the action be against the State is central to the rationale of the ECJ it giving Directives direct effect. This is derived from a form of equitable estoppel identified inPubblico Ministero v Rattiwhich denies a defaulting Member State the possibility of benefiting from its own failure to perform its Treaty obligations.
Positions of the Parties
The INTO on behalf of the complainant submitted that all three conditions for direct effect are present in the instant case. The respondent did not dispute the presence of the first two conditions. It was, however, submitted on its behalf that the within action is not against the State as it is well settled that teachers are employed by the Board of Management of the School and not by the Department of Education and Science.
Further, the Solicitor for the respondent submitted that this Court has no jurisdiction to investigate an alleged contravention of a provision of the Directive. This submission was based on the contention that the jurisdiction of the Court in this appeal is to be found in Section 15(1) of the Act and that the Court may only investigate an alleged contravention of the Act where such alleged contravention occurred on or after 14th July 2003.
Is the Claim Against the State?
The ECJ has adopted a broad definition of “the State” for the purpose of applying direct effect and has included within that concept bodies which emanate from the State. Thus it has included the Chief Constable of a police force (C-222/84Johnson v Chief Constable of the RUC [1986] ECR 1651), a Local Authority (C-103/88Fratelli Costanzo v Commune di Malano[1989] ECR 1839) and a State Company (C-188/89Foster v British Gas plc[1991] ECR 1-3313).
InFoster v British Gasit was acknowledged that the defendant was not under day-to-day state control. It was, however, held that a Directive could be invoked against it because it had been made responsible for the provision of a public service under the control of the State and for that purpose it had special powers beyond those that result from the normal rules applicable in relations between individuals.
In this case the respondent is part of the national school network established by law for the purpose of providing primary education. The history of State involvement in the provision of primary education in national schools can be traced to the early part of the nineteenth centenary when it was entrusted to the Commissioners of National Education in Ireland, a body corporate created by Royal Charter in 1845. The development of the system from that time up to the present is comprehensibly traced in the Judgment of Lefoy J inO'Shiel and Others v The Minister for Education and Science, Ireland and Other[1999] 2 ILRM 24. From this it is clear that at every stage in its development the national school system was regulated controlled and funded by the State. Moreover, State provision of primary education was elevated to a Constitutional imperative in the Constitution of 1937, Article 42.4 of which provides:
- “The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.”
- 4.—(1) The parent of every child to whom this Act applies shall, unless there is a reasonable excuse for not so doing, cause the child to attend a national or other suitable school on every day on which such school is open for secular instruction and for such time on every such day as shall be prescribed or sanctioned by the Minister in respect of such day.
Teachers employed in national schools are not employed by the State in that their contract of employment is with the Board of Management of the school. However, all of the main terms and conditions of their employment are prescribed by the State. The qualifications which a teacher must hold is also regulated by the State and the salary and allowances which they receive is paid out of funds made available by the State. The role and functions of the Board of Management and those of the Patron of a national school are prescribed by the Education Act 1998. Section 14 (1) of that Act provides:
- “(1) It shall be the duty of a patron, for the purposes of ensuring that a recognised school is managed in a spirit of partnership, to appoint where practicable a board of management the composition of which is agreed between patrons of schools, national associations of parents, recognised school management organisations, recognised trade unions and staff associations representing teachers and the Minister.”
Subsection (2) of the Act goes on to provide:
- “(2) A board established in accordance with subsection (1) shall fulfil in respect of the school the functions assigned to that school by this Act, and, except in the case of a school established or maintained by a vocational education committee, each board shall be a body corporate with perpetual succession and power to sue and may be sued in its corporate name.”
A similar question to that arising in the instant case regarding the status of a private funded school for the purpose of applying the doctrine of direct effect was considered by the Court of Appeal for England and Wales inNUT and Others v St Mary’s Church of England Junior School and Others [1997] IRLR 242 This was a case in which the Church of England school in question was part of the state system of education. Both central and local government had statutory power to control the actions of the governors of the school. They were also responsible under Acts of Parliament for the provision of funding to the school.
In considering if the school was an emanation of the State Schiemann LJ started by looking at the Opinion delivered by Mr Advocate General Van Gerven inFoster v British Gas plcwherein he stated:
- As I have already repeatedly emphasized, the point of departure must be the reasoning lying behind the Marshall and Johnston cases : a Member State, but also any other public body charged with a particular duty by the Member State from which it derives its authority, should not be allowed to benefit from the failure of the Member State to implement the relevant provision of a directive in national law .
The Court was satisfied that the school was responsible pursuant to a measure adopted by the State for providing a public service and that service was under the control of the State. The Court was not, however, convinced that the school had any special powers beyond those which apply between individuals. It was nonetheless satisfied that the extent to which it provided a public service under statute made it an emanation of the State.
The reasoning in that case is of strong persuasive authority and it is adopted by the Court.
In relation to the present case it is clear beyond argument that the provision of primary education in a national school is a public service performed under the control of the State. Accordingly the Court is satisfied that the respondent herein is an emanation of the State and that the Directive is directly effective in an action against it.
Jurisdiction of the Court.
The Court is an institution of the State and as such is obliged to take all measures necessary to achieve the result envisaged by a Directive (see c-14/83Von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen[1984] ECR 1891.
In C-106/77Amministrazione delle Finanze dello Stato v Simmenthal SpA,[1978] ECR 629 the ECJ held that every Court which is called upon to adjudicate in a matter involving Community law must apply that law in preference to its domestic law where they are in conflict. The Court stated:
- A National Court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the Court to request or await the prior setting aside of such provisions by legislation or other constitutional means.
The judgement in Simmental was considered by the High Court inMurphy v Telecom Eireann[1989] ILRM 53. This was a case in which the complainant had sought equal pay with male comparators pursuant to the Anti-Discrimination (Pay) Act 1974. The Labour Court had held that the complainant was engaged in work of a higher value to that of the comparator, and that she could have no remedy under the Act. The decision was appealed to the High Court which made a reference to the ECJ for a preliminary ruling on whether the relevant provision of the 1974 Act was consistent with the requirements of the Equal Pay Directive and Article 141 of the Treaty. In its preliminary ruling the ECJ held that the domestic legislation was improperly transposed in failing to provide a woman with equal pay for work of higher value to that of a male comparator.
When the matter was returned to the High Court a question arose as to whether the case could be remitted to the Labour Court to be decided in accordance with the terms of the Directive and the Treaty Article, as they had been interpreted by the ECJ, or whether the case would have to be decided by the High Court within its inherent jurisdiction. In deciding to remit the case to the Labour Court Keane J (as he then was) said:
- In my view, it does not follow that, if the national law is inapplicable, the rights of the appellants under Article 119 can be protected only by proceedings in this Court. The Oireachtas has provided in the Act of 1974 a statutory machinery intended to give effect to the principle of equal pay for equal work and has entrusted the arbitral role between employers and employees in this area to the Labour Court. That tribunal in discharging its statutory function is as much bound to apply the law of the community as is this court. Similarly, where national law and community law conflict, it must give precedence to community law. It is accordingly entirely appropriate in the light of the ruling of the Court of Justice of the EC in the present case to remit the matter to the Labour Court with a direction that the issues between the parties should be determined on the basis that the appellants and the male employee are employed in ‘like work’ . The statutory adjudication must, in other words, be arrived at by applying the relevant principle of community law enunciated by the Court of Justice of the EC rather than the words of ss. 2 and 3 of the Act of 1974 literally construed as our principles of statutory construction require. This seems to me entirely in accordance with the judgments of the Court of Justice in Simmenthal and in the present case.
There is a further tenet of Community law applicable in the instant case which is often referred to as the interpretative obligation or the doctrine of indirect effect. This is a rule of law first developed by the ECJ inVon Colsonwhereby a national Court is required to interpret and apply its domestic law in light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive. This obligation was developed further by the ECJ in
C-106/89Marleasing SA v La Comercial International De Alimentacion SA[1990] E.C.R. I-4135 wherein the Court stated:
- “In order to reply to that question, it should be observed that, as the Court pointed out in Von Colson and Kamann v Land Nordrhein- Westfalen Case 14183 [1984] E.C.R. 1819 , paragraph 26, the Member States' obligation arising from a directive to achieve the result envisaged by the Directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the Directive, the national court called upon to interpret it is required to do so, as far as possible, in light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.”
It is a clear from these authorities that this Court is not only endowed with jurisdiction to apply the law of the Community where it conflicts with a provision of national law, but that it is obliged to do so. The obligation to inform fixed-term workers of vacancies is unconditional, it is expressed in sufficiently unequivocal language and the respondent is an emanation of the State. Accordingly the conditions necessary to allow the complainant to rely on clause 6 of the Agreement annexed to the Directive are fulfilled.
Moreover, it is clear from the long title of the Act that its purpose is to implement the Directive in Irish law. The objective envisaged by the Directive is that individuals would have the rights prescribed therein from the date set out for its transposition. The interpretative obligation placed on this Court by Community law requires it to interpret and apply national law so as to achieve the objective envisaged by the Directive. If there is a conflict between a provision of the Act and a provision of the Directive, the law as contained in the Directive must prevail.
Determination
For the reasons set out above the Court Determines that the complaint herein is well founded. Accordingly the appeal is allowed.
The INTO had submitted that by way of redress the Court should direct the respondent to inform the complainant of vacancies arising in the school in the future. Having considered the terms of Section 14(2) of the Act the Court is satisfied that such a course is not open to it in a case where the complainant is no longer employed by the respondent.
The Court considers that the appropriate redress is an award of compensation. The Court measures the amount which is fair and reasonable in the circumstances at €2,000. The respondent is directed to pay the complainant compensation in that amount.
Signed on behalf of the Labour Court
Kevin Duffy
18th April, 2005______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.