FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : LOUTH VEC (REPRESENTED BY DEPARTMENT OF EDUCATION & SCIENCE) - AND - BERNADETTE MARTIN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr. Somers |
1. Appeal against Rights Commissioners Decision PT10592/02/JH.
BACKGROUND:
2. The case before the Court concerns the award of incremental credit for previous unqualified service as a teacher given by the worker with County Louth VEC scheme.
The worker in question became fully qualified in November 2003, and has received the correct entitlements since then. The worker says that she has a valid complaint under the Protection of Employees Part-Time Work Act 2001, in that she was treated less favourably than a comparable full-time employee.
The employer rejects the claim on the basis that incremental credit is only awarded to teachers who are fully qualified, based on the criteria set out by the Minister for Education. The Protection of Employees (Part-Time Work) Act 2001, Section 9(2) states that "if treating a part-time employee in a less favourable manner than a comparable full-time employee can be justified on objective grounds. then that employee may be so treated".
The dispute was referred to the Rights Commissioner who addressed the complaint as regards a collective Agreement approved by the Labour Court on 25th August 2003, in relation to part-time teachers. Section (5) of the Agreement states that "for the purpose of the Agreement a part time teacher is any teacher who (a) is fully qualified for appointment as a permanent teacher in a primary or second level school, traveller training centre, VTOS Centre, the Prison Service or a similarly recognised exchequer funded educational institution as agreed from time to time". This clause is taken to exclude unqualified teachers for the purpose of incremental credit.
The Rights Commissioner, in her decision found that as regards the terms of the Collective Agreement, the worker did not have a valid complaint.
The worker was named in the Rights Commissioner's Decision. On the 11th March, 2004, the worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001.
A Labour Court hearing took place on the 20th October, 2004.
COMPANY'S ARGUMENTS:
3. 1. The comparator chosen by the worker in this case was not acceptable as a difference existed in the level of qualifications between the two.
2. The collective Agreement, approved by the Labour Court specifically excludes unqualified teachers with regard to the awarding of incremental credit.
3. The worker was not treated in a less favourable manner than a comparable full-time employee on the basis of her part-time status. Rather, any differences in treatment is based on the legitimate and objective requirements that teachers possess certain minimum qualifications.
WORKER'S ARGUMENTS:
4. 1. The comparator chosen was appropriate as similar work was carried out by both.
2. The worker in question is qualified by experience. She has been teaching all classes up to Leaving Certificate standard for 20 years. It is unacceptable that this experience is worthless in terms of the awarding of incremental credit.
3.A previous Labour Court recommendation (LCR 16412) stated that due to the workers long service and unique position within the VEC that special consideration be given to her situation. The Department of Education knew nothing of the recommendation as it had not been brought to their attention by the VEC.
DETERMINATION:
The claimant’s case
The claimant is a fully qualified teacher of Art and is employed as a prorata contract teacher (16 hours 20 minutes per week) in Scoil Ui Mhuiri, Dunleer which is under the auspices of Co. Louth VEC. Ms. Martin obtained the requisite qualification to be recognised as a fully qualified teacher when she obtained the NUI Diploma for Art and Design in November 2003. The appeal of the Rights Commissioner’s decision concerns the awarding of incremental credit for her previous unqualified service. Ms. Martin contends that she was treated less favourably in respect of her years of service for incremental purposes than a comparable full-time employee of the respondent contrary to section 9 of the Protection of Employees (Part-Time Work) Act, 2001 (the Act).
The claimant stated that she had been employed by Louth VEC since 1980. She teaches at all class levels in the school, including Junior Certificate Level, Transition Level, and Leaving Certificate Level (including remedial students at various levels) and she is the only Art teacher in the school. Other than the subject she teaches there is no difference in her work compared to the named full time comparator.
The Respondents case
The claimant is currently paid at point 4 on the Teacher Common Basic scale (which is a 25 point scale). The respondent stated that the minimum qualifications for appointment to VEC incremental teaching posts are prescribed by the Minister for Education and Science and that the claimant did not meet the prescribed qualifications until November 2003 when she was placed at point 3 of the scale. From 1989 to 2003, Ms. Martin was incompletely qualified and was therefore placed on point one of the scale.
In addition, the respondent indicated that incompletely qualified teachers may not be appointed to a permanent teaching post or be appointed to a post of responsibility in their schools. Similarly, qualified teachers may not reckon previous unqualified teaching service for incremental credit or seniority purposes.
Section 9 of the Act states:
“….a part time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.”
and section 9 (2)
“….if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable fill-time employee can be justified on objective grounds, then that employee may …..be so treated.”
The respondent accepts that teachers who are incompletely qualified are treated in a less favourable manner in terms of conditions of service, than fully qualified teachers. This applies in the case of both full-time and part-time teachers. The different treatment is on the basis that teaching is a profession with prescribed minimum academic qualifications, as prescribed by the Minister. These minimum qualifications are an essential part of a range of policies to maintain and develop the quality of education services. For those who are incompletely qualified, special arrangements are available for them to secure the necessary minimum qualification. In essence, the respondent states that the necessity, in so far as it is possible, for all teachers to have the minimum academic qualification is sufficient objective justification for its policy in not placing unqualified teachers on the incremental scale and that this policy applies to both full time and part –time unqualified teachers
The respondent cites Costello J.McCann v Minister for Education and Another 1996 ILRMin support of this contention. In this case, the High Court found in favour of the respondents policy whereby incremental credit was paid based on the total number of completed years of approved teaching service.
‘Approved Teaching Service’ was defined as service as a registered teacher or service as a teacher, other than a recognised teacher, which was registrable teaching service, accepted for the purpose of section 111 of regulation 2 of theRegulations for the Register of Teachers 1967.The High Court found that Ms. McCann’s teaching service was not ‘approved service’ as she“was neither a registered teacher nor was she registrable at the relevant time”.
In 2003 the Department of Education and Science and School Management reached agreement with the Teacher Unions regarding implementation of the Protection of Employees (Part-Time Work) Act, 2001 in respect of part-time teachers in primary and second-level schools. This collective agreement was registered with the Labour Court. Section 5 of this agreement deals with the definition of a part-time teacher and specifically states:
- “for the purpose of this agreement a part-time teacher is any teacher who (a) is fully qualified for appointment as a permanent teacher in a primary or second level school, traveller training centre, VTOS Centre, the Prison Service or a similarly recognised exchequer-funded educational institution as agreed from time to time”
The respondent contends that it did not discriminate against Ms. Martin, that she was not treated in a less favourable manner than a comparable full-time employee on the basis of her part-time status, rather that any difference in treatment was based on the legitimate, fair and objective requirement that teachers posses certain minimum qualifications to be entitled to pro-rata treatment in terms of incremental credit.
The respondent contends that the work performed by the claimant and the comparator is not equal to or greater in value to the work performed by the comparator, as defined by section 7 (3) (c) of the Act, having regard to the “skill” of the claimant. This was due to the fact that she did not posses the same qualifications as the comparator for the period for which the incremental credit points are claimed.
Conclusions of the Court
The issue before the Court is not whether qualified or unqualified teachers are entitled to incremental credit for their years of service but whether part-time teachers performing the same functions as full time teachers are entitled to the same pro-rata benefits, including being placed on the incremental scale. And if they are, is the fact that they do not have the same qualifications as the comparable full time teachers sufficient objective justification for the decision not to place them on the same incremental scale as the comparable full time teachers.
Council Directive 97/81/EC in defining who may be considered a comparable part-time worker states:
- “The term ‘comparable full-time worker’ means a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard being given to other considerations which may include seniority and qualification/skills.”
The only remaining question before the Court is whether the respondent can avail of the protection afforded by Section 9(2) of the Act which states as follows.
“Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated”Section 12 provides assistance in deciding what may or may not be an objective ground. It states:
“12. -(1) 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 than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.”
The respondents contend that in this case the application of the Department’s policy to the complainant resulted in her not receiving incremental points for her years of service not because she is a part-time employee, but because she is incompletely qualified as a teacher. A full time Teacher similarly unqualified would have been treated the same. The Court accepts this contention and finds that the treatment of the complainant was not based on her status as a part-time teacher.
The Court must now consider whether the treatment is for the purpose of achieving a legitimate purpose of the employer and is both appropriate and necessary for that purpose
The respondent submits that Ms. Martin was“not treated in a less favourable manner than a comparable full-time employee on the basis of her part-time status, rather that any difference in treatment was based on the legitimate, fair and objective requirement that teachers posses certain minimum qualifications.”
Therefore, the respondent submits that if the complainant was less favourably treated, then such treatment was objectively justified.
The question as to what constitutes objective justification has been considered by the ECJin Bilka – Kaufhauf,GmbH v Karin Weber von Hartz [1986] ECR 1607.This test requires that the Court be satisfied that the impugned measures: -
(a) correspond to a real need on the part of the undertaking,
(b) are appropriate with a view to achieving the objective pursued, and
(c) are necessary to that end.
Does the requirement to encourage teachers to become fully qualified correspond to a real need on the part of the respondent?
The Court finds as a fact that a requirement for teachers to be fully qualified before proceeding upon the incremental scale corresponds to a real need on the part of the respondents to ensure that all persons teaching in their schools have the appropriate academic qualifications. The Act refers to the term legitimate objective. This would seem to imply a somewhat lesser standard of justification but since the Court has found that requirement corresponds to a real need, there is no necessity to consider this point.
Were the means chosen appropriate?
This aspect of the test requires that the means chosen be proportionate to the objective, which they are intended to achieve.
In the Courts view the value of the benefit, which accrues to both teachers and students, when balanced against the discriminatory effect of the method by which it was achieved, does satisfy the requirement of proportionality.
Were the means necessary to achieve the end in view?
The requirement here is for the employer to demonstrate that there were no alternative means, having a less discriminatory effect, by which the objective in view could have been achieved.
The respondents state that the different treatment of qualified and incompletely qualified teachers is on the basis that teaching is a profession with prescribed minimum academic qualifications which are an essential part of a range of policies to maintain and develop the quality of education services. Its aim is to encourage persons to become qualified for the teaching profession. Without this incentive, it is submitted that these teachers may not pursue such qualifications; encouragement to qualify is given in the following way :-
1. non payment of incremental credit2. provision of special arrangements to enable incompletely qualified teachers to secure the necessary minimum qualification3. incompletely qualified teachers may not be appointed to a permanent teaching post or be appointed to a post of responsibility in their schools
The respondents submit that there really are no alternative means by which this objective could be pursued.
Having considered the matter fully the Court accepts the respondents contention in this regard. The Court also notes that no alternative means by which the respondents could achieve their objective were advanced by the claimant.
In the circumstances, the respondent has satisfied the Court that the treatment of incompletely qualified teachers in terms of the non-application of incremental points was objectively justified within the meaning of Section 9(2) of the Act.The Court accepts the respondent’s contention that it is appropriate and necessary to put in place a financial sanction such as the Department’s treatment of incremental points, in order to encourage incompletely qualified teachers to obtain the appropriate qualifications and that such treatment constitutes a legitimate objective, and corresponds to a real need on behalf of the respondent.
For all of the foregoing reasons the appeal herein is disallowed and the decision of the Rights Commissioner is affirmed albeit on different grounds.
Signed on behalf of the Labour Court
Caroline Jenkinson
13th January, 2005______________________
AH/MB.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.