FULL RECOMMENDATION
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : CORK COUNTY COUNCIL - AND - P.J. KENNY / HILARY NEVILLE / ROSE QUINLAN / MARY MURPHY (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Decision FT19517, FT21310, FT21311, FT021312/04/DI
BACKGROUND:
2. The matter was referred to a Rights Commissioner for investigation and recommendation. His decision issued on the 19th January, 2005, as follows:
"I confirm the matters conceded by the Council at the commencement of the Hearing.
1 find against (claimants named) that they were incorrectly graded and should be upgraded to the position of Area Based Officer, at grade 5 level, on the same terms and conditions as their permanent comparable colleagues. The agreement reached between IMPACT and the Council set down an agreed list of duties that the new Area Based Officers could be asked to perform. On appointment many of new Area Based Officer have taken up a range of these new responsibilities. As these new duties do not apply to former Revenue Collectors, I find that the position of Area Based Officers and the position of Revenue Collectors are not comparable.
I believe the Claimants are correctly graded at grade 4 and should enjoy the same benefits as other Council employee’s whose jobs have been evaluated at this level”.
On the 28th February, 2005, the claimants appealed the Rights Commissioner’s Recommendation in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work ) Act, 2003. A Labour Court hearing took place on the 15th June, 2005.
DETERMINATION:
This appeal by IMPACT is on behalf of four complainants who were employed on a fixed term contract with the County Council on 5th August 2003 when the Union lodged complaints under the Protection of Employees (Fixed Term Work) Act, 2003. The Union contends that the complainants were been treated less favourably than comparable permanent employees contrary to section 6 of the Protection of Employees (Fixed-Term Work) Act, 2003 (the Act). The Union referred three complaints to the Rights Commissioner: -
(a) the complainants had not been offered permanent contracts,(b) the complainants had been placed on a lower salary scale than comparable permanent employees despite carrying out the same/similar duties,
- and
Background
It is common case that all four comparators were employed as Revenue Collectors Grade IV and were “fixed term employees” within the meaning of the Act, at the time of the Union’s claim to the Rights Commissioner.
An agreement was reached between Cork County Council and IMPACT in December 2001 following lengthy negotiations on the rationalisation of revenue collection. This agreement resulted in the abolition of the grade of Revenue Collector (Grade IV) and the creation of an Area Based Officer Grade at Grade V level, on a red circling basis, with new duties attaching to the post. The agreement allowed for the introduction of Bill Pay for the collection of rent annuities, and as a result, door-to-door collections were eliminated.
Union’s arguments
Following the December 2001 agreement on the abolition of the Revenue Collector grade for permanent employees, the permanent Revenue Collectors were appointed to the new Area Based Officer posts and received the higher Grade V salary, backdated to the date of the Agreement. However, not all of the permanent Revenue Collectors took up the agreed new duties on appointment to Grade V. The Union point specifically to three former permanent Revenue Collectors who have continued to carry out their former Revenue Collector duties and are paid at the higher Area Based Officer grade. All four complainants carry out the same/similar duties.
It is the Union’s position that the County Council discriminated against the four named appellants solely by reason of their temporary contract status contrary to section 6 of the Act. It contends that the complainants would have been appointed to Area Based Officer positions had they been employed/classified as permanent Revenue Collectors by Cork County Council in accordance with the Act. The Union accepts that the terms of the 2001 agreement was on a personal to post holder basis only, however, it stated that the County Council interpreted this as personal to ‘permanent’ post holders only and contents that this is contrary to the provisions of the Act.
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 Union contends that by application of the doctrine of direct effect of Community law the complainants are entitled to rely on the Directive to have application from that date.
County Council’s arguments
The duties allocated to the posts of Revenue Collector and Area Based Officer are considerably different. This can be seen from the protracted negotiations with the Union on the introduction of the new grade of Area Based Officer. The fact that the duties allocated to the post of Area Based Officer are considerably different is the reason for the difference in salaries, and not that one is on a fixed term contract and the other on a permanent contract.
The complainants were recruited initially to act as relief for Revenue Collectors for short-term absences and as replacement for retirees pending the implementation of rationalisation. At no stage during the rationalisation discussions leading to the December 2001 agreement did IMPACT include the complainants in the discussions. This was due to the Union understanding that they would be let go at the end of the rationalisation process. The Union clearly accepted the above position and understood that there was objective justification for the decision not to include the complainants in the negotiations. Due to the protracted negotiations, situations arose where Revenue Collectors retired during that period and the positions were filled temporarily on a continuing basis by the complainants. The agreement provided for a substantial change of duties for all Area Based Officers compared to their previous position as Revenue Collectors.
The Council explained that the agreement was completed in two of the three Divisions i.e. North and South Cork, and that there had been a delay in the implementation process in West Cork, the area in which the comparators work, but once the implementation process is completed, their duties will be significantly different to those carried out by the complainants. The Council decided to make the Area Based Officer posts personal to holder and red-circled them as it will not require any further posts at Area Based Officer level and does not intend to fill any further posts at that level following retirements. Since the agreement was put in place any retirements from that grade have been filled as office based positions at Grade VI level.
While the respondent accepted that higher salaries were attached to the Area Based Officer post, the respondent contended that these posts were created specifically for the incumbents at a time when major rationalisation of revenue collection was envisaged in the Cork area and they were paid at the higher level for that contingency whether they were required to take up those positions immediately or at a later date. The complainants were recruited specifically to fill in for absences and as replacement for retirees, pending the implementation of the rationalisation programme. The respondents contended that the complainants would not be required to carry out Area Based Officer duties at any time now or in the future.
The respondents condended that the commitment to carry out the new duties associated with the Grade V position on completion of the rationalisation programme together with the reasons already given for the appointment of the comparators to the Area Based Officer posts constitutes objective grounds for the less favourable treatment of the comparators.
Court Findings
Whilst the Court accepts that the 2001 agreement was completed in industrial relations terms between the parties on agreed lines to exclude those on temporary contracts, and was not in breach of the law at the time, if the alleged discriminatory treatment continues after the coming into being of the Act, the complainants may bring a claim under the Act.
If the higher salary is paid to the comparators for carrying out the same duties as are carried out by the complainants, then the reason for withholding the higher salary from them would,prima facie, be related to their fixed term status. In such circumstances, it is of no consequence that other employees on the same grade as the comparators are carrying out duties of a higher value.
The Act states: -
Conditions of employment for fixed-term employees
Section 6. - (1)"Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee."
(2)"If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated."
Section 7 (1) of the Act states:
- “A ground shall not be regarded as an objective ground for the purposes of any provision of this part unless it is based on considerations other that the status of the employee concerned as a fixed term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of affixed term employee’s contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.”
Section 7 (1) of the Act by allowing for less favourable treatment on objective grounds, provides a defence for the employer. It is, however, clear that an employer seeking to rely on that defence must prove that the differentiation is genuinely attributable to grounds other than the status of the employee concerned as a fixed term employee and is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.
This requires that the respondent establish to the satisfaction of the Court the actual reasons why the comparators are paid the higher salary, that those reasons are genuine, and that they do not apply in the case of the complainants. Further, as appears from the judgment of Mr. Justice Barron inFlynn v Primark [1997] ELR 218, the respondent must show that there is objective justification for the difference in treatment, and that the justification is not merely historical but exists at the date of the determination.
It is against those general principles that the Court has considered the respondent's submissions on the applicability in this case of Section 6 of the Act.
The Court notes that the respondent accepts that the current duties of the complainants are equal in value to that of three named comparators located in the West Cork area, where the rationalisation programme has not yet been implemented.
In relation to the higher salary attached to the Grade V Area Based Officer post, the respondent contends by way of objective justification for the difference, that these posts were created specifically for the incumbents at a time when major rationalisation of revenue collection was envisaged in the Cork area and they were paid at the higher salary level for that contingency whether they were required to take up those positions immediately or at a later date. In contrast the complainants were recruited specifically to fill in for absences and as replacement for retirees, pending the implementation of the rationalisation programme. The respondents contended that the complainants would not be required to carry out Area Based Officer duties at any time now or in the future. This, the respondent says, constitutes objective grounds unrelated to their status as fixed term employees.
The Court having carefully examined the submissions and evidence is satisfied that the decision to pay the higher salary to the comparators was solely due to their permanent status in December 2001 and that no factors have been presented to change that decision in the meantime. Since 2001, the three named comparators have been paid at the higher salary while continuing to carry out similar duties to the four named complainants.
In the view of the Court, the respondent has failed to adduce any admissible or reliable evidence showing objectively justifiable and subsisting grounds other than the status of the employees as fixed term workers for the pay difference between the complainants and the comparators in receipt of higher salary. Accordingly, the Court accepts that the complainants are entitled to the higher salary attaching to Grade V.
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 thatconfers rights on individuals which national courts must protect without the need for implementing legislation in the Member Statesothers v Regione Lombardia and Others[1994] 1-483).
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 or an emanation of the State is central to the rationale of the ECJ giving Directives direct effect. This is derived from a form of equitable estoppel identified inPubblico Ministero v Rattithat denies a defaulting Member State the possibility of benefiting from its own failure to perform its Treaty obligations.
The respondent did not contest that it was an emanation of the State providing a public service under the control of the State. Neither did it contest that the relevant provisions of the Treaty or the Directive were insufficiently precise and unconditional.
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.
Determination
For the reasons set out above the Court determines that the complaint herein is well founded. Accordingly, the appeal is allowed and the complainants must succeed.
It only remains for the Court to consider the appropriate remedy and the dates between which it must be paid. In this particular case the Court will make an order directing the respondents to pay Grade V salary to the complainants from the 10th of July 2002 until the date on which they became permanent full-time workers by agreement with the respondent - the 28th day of October 2004. The provisions of Section 9 of the Act do not apply, so their terms and conditions of employment on becoming permanent workers became negotiable under the provisions of any relevant industrial relations legislation and the Court could not make an order under this Act in respect of such terms and conditions, from that date.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd August, 2005______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.