FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : RAILWAY PROCUREMENT AGENCY - AND - ALLAN BELL, VINCENT CARROLL, DAVID CORRI, MICHAEL HEALY, COLIN LARKIN, DUALTA MURPHY DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal Of A Rights Commissioner's Decisions R-053996-Ft-07/Jt, R-054295-Ft-07/Jt, R-054663-Ft-07/Jt, R-054568-Ft-07/Jt, R-053994-Ft-07/Jt, R054993-Ft-07/Jt
BACKGROUND:
2. An appeal against a number of Rights Commissioner's Decisions was submitted to the Labour Court on 1st December, 2008 by the Workers representative in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on 8th June, 2009. The following is the Court's Determination:-
DETERMINATION:
The Dispute.
This is an appeal by David Corri, Michael Healy, Vincent Carroll, Colin Larkin, Allan Bell and Dualta Murphy (hereafter referred to as the Complainants) against the decision of a Rights Commissioner in their claim against their employer, the Railway Procurement Agency (hereafter the Respondent). The claim was made pursuant to s.6 of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The substance of the claim is that the Complainants, being fixed-term employees within the meaning of s.2 of the Act, are entitled to the same terms and conditions of employment, including pay and pension entitlements, as comparable permanent employees of the Respondent.
Preliminary issue
By way of a preliminary objection to the jurisdiction of the Court to hear all of the listed appeals the Respondent submitted that only the appeal of Mr Corri was properly referred to the Court. In advancing her objection, Ms Bolger B.L, for the Respondent, pointed out that notification of the appeals was given on a single form which listed the reference numbers of the Rights Commissioner decisions under appeal and the names of the six individuals to whom those decisions relate. Mr David Corri using the designation “employee representative” then signed the form.
Counsel submitted that s.15 of the Act requires that an appeal be made by an individual party to a decision of a Rights Commissioner and that there is no provision for the submission of an appeal by a representative.
The Court was told by the parties named in the title of the proceedings that they had authorised Mr Corri to complete the form on their behalf.
The Court is satisfied that the appeals are properly before the Court. Section 15(4) (a) of the Act provides that the procedure in relation to all matters concerning the initiation and hearing of appeals shall be determined by the Labour Court.
The within appeals were initiated using the form produced by the Court for the purpose which allows for it to be signed by an employee representative. In that regard the Court has always accepted that parties appearing before it have an unfettered right to nominate their own representative. In the instant case the prospective appellants were listed, as was the reference numbers of the Rights Commissioner decisions to which the appeals relate. A copy of this form was sent to the Respondent after the Court received it on 1st December 2008. The Respondent could have been in no doubt as to the identity of the appellants and the Rights Commissioner decisions being appealed.
At that stage the Respondent raised no issue concerning the manner in which the appeals were initiated and clearly accepted that six decisions were being appealed by six individuals. This is clear from the fact that in the submissions filed with the Court each of the appellant / complainants are named as parties to the appeals.
In all the circumstances the Court is satisfied that the objection of the Respondent to the jurisdiction of the Court on this point is not well founded.
Position of the parties
The Complainants pointed out that they were originally employed by CIE in its Light Rail Project Office. They later transferred to the Respondent. They are members of a defined contribution pension scheme which the Respondent operates for all its employees, whether employed on fixed-term or permanent contracts. The Complainants say that CIE operated a defined benefit pension scheme for all permanent staff. The Court was told that staff of CIE were generally designated as permanent after 12 months employment in a temporary capacity and were entered in the defined benefit pension scheme. Staff of CIE also had certain medical benefits and travel concessions. They had the further benefit of a 15% increase in pay arising from the operation of a public sector pay agreement. The Complainants had none of these benefits while employed by CIE because, they contend, of their fixed-term employment status.
The Complainants were transferred to the Respondent on their then existing conditions of employment. Twelve of their colleagues in the CIE Light Rail Project Office were also transferred to the Respondent, but on their superior conditions of employment. The difference in pay and conditions of employment between those of the Complainants and those of the permanent staff transferred has continued to the present.
The Complainants contend that the difference in their conditions of employment compared to that of the permanent staff constitutes discrimination against them on grounds of their status as fixed term workers. In reliance on s 6 of the Act they are claiming parity of treatment with the12 permanent staff transferred to the Respondent, whom they have nominated as comparators for the purpose of this claim.
The Respondent denies that the Complainants are fixed-term employees within the statutory meaning. It was submitted on its behalf that the work on which the Complainants are engaged is the core activity of the Respondent and will continue for as long as the Respondent exists. It contends that in these circumstances they could not be regarded as fixed-term employees within the statutory meaning of that term.
The Respondent contends, on that account, that the Complainants have nolocus standito maintain the within proceedings and that the Court has no jurisdiction to entertain their complaints. Without prejudice to its contention in that regard the Respondent further contends that the within complaints were submitted outside the time limit prescribed by s.14 of the Act, in consequence of which they are statute barred. It is still further contended by the Respondent that the comparators nominated by the Complainants are not appropriate comparators for the purpose of the Act. It is submitted, further and in the alternative, that even if the Complainants have a right to maintain the within proceedings, the difference in treatment of which they complain is justified on objective grounds within the meaning of s. 7 of the Act.
The factual background
The Transport (Dublin Light Rail) Act 1996 authorised CIE to construct and operate light railways. This was the statutory framework within which the Luas tramway was to be constructed. The Complainants were employed by CIE, on various dates in or about 2000, on work associated with the construction of the Luas system. Each of them was employed pursuant to written contracts of employment which are in common form.
The following provisions of these contracts are relevant for present purposes: -
2. “Duration
- 2.1 This Agreement shall commence on (date) and shall continue until completion of the purpose for which the employee is being employed associated with the Luas Light Rail Project”
- 8.1 This contract shall automatically terminate on completion of the purpose for which it was entered into or until completion of the Luas Project, which ever is the shorter, subject to the Minimum Notice legislation”
14 “ Unfair Dismissals Act 1977
- 14.1 The parties agree that the Unfair Dismissals Act 1977 shall not apply to a dismissal of the Employee by the Company consisting only of the cessor of the purpose of the contract”
In December 2001the Transport (Railway Infrastructure) Act 2001 was enacted and the Transport (Dublin Light Rail) Act 1996 was repealed. The new Act contains provisions similar to the repealed Act in respect of Luas and provided for the establishment of RPA as an independent statutory agency responsible for the procurement of railway infrastructure systems.
Subsections (4) and (5) of s.24 of the Act of 2001 provide as follows: -
- (4) Every person designated by the Minister who, immediately before the establishment day, is a member of the staff of the Light Rail Project Office of CI� shall, on that day, be transferred to and become a member of the staff of the Agency.
(5) Save in accordance with a collective agreement negotiated with any recognised trade unions or staff associations concerned, a person referred to in subsection (4) shall not, while in the service of the Agency, receive a lesser scale of pay or be made subject to less beneficial terms and conditions of service (including those relating to tenure of office) than the scale of pay to which he or she was entitled and the terms and conditions of service (including conditions relating to tenure of office) to which he or she was subject immediately before the establishment day.
Pursuant to subsection (4) of that Act the Complainants were transferred to the Respondent on 23rd December 2002.
The Complainants were employed to work on the development of the Luas light rail system. In 1999 Railway Orders were made authorising the development of what is now known as the Luas Red line and the Luas Green line. In July 2000 the Minister for Public Enterprise announced that the Government had approved the development of a Metro system, which in time would be connected to the Luas Red and Green lines. Various other transport related functions were assigned to the Respondent over the following years, including the extension of the Luas lines and the development of an integrated ticketing system.
Correspondence passing between the Respondent and Mr Corri, who acted as spokesperson for the other Complainants, was opened to the Court. Of particular significance is an exchange of letters between the parties in June 2006 and April 2007. By letter dated 28th June 2006 Mr Corri wrote to Mr Darragh Byrne, who is company secretary of the Respondent making reference to the Act of 2003 and asserting that he and his colleagues were fixed-term employees within the meaning of that Act. They claimed an entitlement to a contract of indefinite duration by reason of the length of their employment. Of particular importance for present purposes they claimed an entitlement to parity of conditions of employment with permanent CIE staff.
Mr Byrne replied in detail to Mr Corri by letter dated 12th April 2007. In this letter Mr Byrne stated, in relevant part: -
- “At the outset I want to make absolutely clear to you that insofar as your employment with RPA is concerned, we regard you as a permanent employee”
Mr Byrne went on to deal in detail with the provisions of the Act of 2003 and gave reasons why he believed that it had no application to the circumstances of Mr Corri and his colleagues. The letter then went on to deal with issues arising from the designation and transfer of staff from CIE to the Respondent pursuant to the Transport (Railway Infrastructure) Act 2001. In particular Mr Byrne outlined the circumstances in which some transferred staff are in a defined benefit pensions scheme while others are in a defined contribution scheme.
Mr Corri replied to Mr Byrne by letter dated 17th April 2007. He commenced his letter in the following terms: -
- “Thank you for your letter dated April 12 2007. We welcome the fact that the Agency now views my colleagues and me as permanent employees.
I can truly say that some colleagues were overjoyed at the news, particularly with over nine years service. Some have been with the Luas project since its inception and this is the first time that their permanent status has been recognised............”
Mr Corri’s letter went on to take issue with many of the points made by Mr Byrne concerning the interpretation and application of the Acts of 2003 and 2001.
Thereafter the within complaint was referred to a Rights Commissioner on 21st May 2007.
Conclusion of the Court.
The Law.
Subsections (4) and (5) of Section 14 of the Act provide as follows: -
(3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.(4) Notwithstanding subsection (3), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (3) (but not later than 12 months after the end of that period) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
The protection of the Act is conferred solely on fixed-term employees and a complaint under the Act can only be entertained if it relates to a period of fixed-term employment. Hence, the first point for consideration is whether the Complainants were fixed-term employees within the statutory meaning in the six month period ending on the date on which their complaints were referred to the Rights Commissioner. If they were not fixed-term employees during that period they cannot maintain these proceedings and the Court has no jurisdiction to entertain their claim.
By application of the doctrine of direct effect of Community law, the Complainants also seek to ground their claim directly on Directive 1999/70/EC of 28th June 1999 concerning the Framework Agreement on Fixed-Term Work concluded by ETUC, UNICE and CEEP. InEmmott v Minister for Social Welfare[1991]ECR-14269, the ECJ held that the time limit for the bringing of such an action commences on the date on which the Directive is properly transposed in the member state in question. The Act was enacted on 14th July 2003 and so the time limit for bringing an action grounded on the Directive expired on 13th January 2004. Clearly the within complaint was presented outside that time scale.
Section 2 of the Act defines what constitutes a fixed-term employee. It provides: -
- “fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event ...”
The Complainants say that they are employed pursuant to their original contracts with CIE which are expressed to be for the purpose of completing the “Luas project”, which is continuing (see clauses 2 and 8 of the contract recited above). They contend that their employment will be determined by the completion of that specific task and that they are, on that account, fixed-term employees.
The Respondent contends that, whatever about the original position, the Complainants were not fixed-term employees at the time material to their claim. It was submitted that the work in which they are involved is now the core activity of the Respondent and has moved on from being a mere project. They say that even if the Complainants were ever fixed-term employees (which is denied) they ceased to be such, at the very latest, in 2004 when the first Luas lines were opened.
In considering the question posed by this aspect of the case the Court has first considered the terms of the contracts concluded between the Complainants and CIE in 2000 and if that contract still governs the employment relationship between the parties.
Clause 2 of the contract expressly provides that it will continue,“until completion of the purpose for which the employee is being employed associated with the Luas Light Rail Project”.Clause 8 of the contract provides that it will automatically terminate “on completion of the purpose for which it was entered into or until completion of the Luas Project, which ever is the shorter, subject to the Minimum Notice legislation”
The essence of a fixed-term contract is that it will come to an end by the occurrence of an objective condition specified in the contract itself. That condition can be the effluxion of time, the completion of a specific task or the occurrence of an event. It would appear logical that where the completion of a specific task is the determining event, it would have to be a clearly identified and specific task which would eventually come to an end, such as a task or project which is not part of the fixed and permanent needs of the employer. Were it otherwise practically every employment contract could be regarded as being for a fixed-purpose and therefore a fixed-term contract within the meaning of the Act.
In the present case the determining condition is the completion of the “the Luas Light Rail Project”. What constitutes the Luas Light Rail project is by no means clear. Accordingly, the meaning to be ascribed to the expression should be determined by the ordinary rules relating to the construction of private legal documents including contracts of employment.
Definitive guidance on the approach to contractual interpretation can now be found in the speech of Lord Hoffmann inInvestors Compensation Scheme v Bromwich Building Society[1998] 1 WLR 896. Here it is made clear that a contract is to be interpreted by ascertaining the intentions of the parties and giving the written document a meaning consistent with those intentions. Here Lord Hoffmann enunciated the following principles to be applied in undertaking that task: -
- “(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
- (2) The background was famously referred to by Lord Wilberforce as the “matrix of fact”, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be next mentioned, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.
(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammar; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co. Limited v. Eagle Star Life Assurance Co. Ltd.[1997] A.C. 749.
(5) The “Rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would, nevertheless, conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera SA v. Salen Rederierna A.B. [1985] A.C. 191, at p. 201:-
- (2) The background was famously referred to by Lord Wilberforce as the “matrix of fact”, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be next mentioned, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
- ‘If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense’.”
That approach to the interpretation of contractual terms was adopted in this jurisdiction by the Supreme Court in Analog Devices BV v. Zurich Insurance Company [2005] 1 IR 274, and more recently in Emo Oil Limited v Sun Alliance & London Insurance Company [2009] IESC 2
To similar effect were the views expressed by Laffoy J. in UPM Kymmene Corporation v. B.W.G. Limited (Unreported, High Court, Laffoy J., 11th June 1999) in relation to the construction of a contract where she stated as follows:-
- “… The basic rules of construction which the court must apply in interpreting the documents which contain the parties’ agreements are not in dispute. The court’s task is to ascertain the intention of the parties, and the intention must be ascertained from the language they have used, considered in light of the surrounding circumstances and the object of the contract. Moreover, in attempting to ascertain the presumed intention of the parties the court should adopt an objective, rather than subjective approach and should consider what would have been the intention of reasonable persons in the position of the parties”.
Hence, the search for intention should be conducted objectively by reference to what a reasonable person in the circumstances of the parties would understand to be their contractual rights and duties rather than subjectively by reference to what the parties thought they had agreed.
Having regard to the terms of the contracts concluded in 2000 the Court has no doubt that they were for a fixed purpose and therefore fixed-term contracts within the meaning of the Act. That is clear from the language of clauses 2 and 8 of the contracts. It is also clear from the inclusion of clause 14, the terms of which could only apply to a fixed-term contract.
The net issue then for consideration is what would a reasonable person, having all the background knowledge available to the parties at the time the contracts were made, understand to be “the work associated with the Luas Light Rail Project”. Would such a reasonable person understand it to be the work then actually approved and in progress or would they consider it to be the work involved in implementing the totality of initiatives involving light rail then in contemplation.
At the time the contracts were concluded the Light Rail office of CIE was engaged in the work associated with the two Luas lines known as the Red and Green lines. While certain announcements had been made concerning the Governments intention to authorise an extended light rail system the only Railway Orders in being were those authorising the two lines in question. Moreover, the Governments extended transport plan appears to have been based on the report of the Dublin Transportation Office entitled “A Platform for Change-outline of an integrated transportation strategy for the greater Dublin area: 2002 -2016, which was published in October 2002. It would thus appear that the full realisation of the various transport options involving light rail or metro services then in contemplation was likely to take at least 16 years.
In the context of a fixed-term or temporary contract it seems much more likely that a reasonable person would have had in mind arrangements for the work involved in planning and building the two lines that were then approved. It is less likely that such a person would have had in mind an extended project involving other initiatives then in contemplation but in respect of which there was little by way of concrete commitment. Moreover, if the latter view were to be taken, it would mean that the purpose of the contracts would, in effect, have been to meet what had become the long-term, fixed and permanent needs of the Respondent. The conclusion of a fixed-term contract to meet such needs could, in itself, be regarded as an abuse (see comments to that effect by Advocate General Kokott in case C-212/04- Adeneler and others v. Ellinikos Organismos Galaktos [2006] IRLR 716)
In these circumstances the Court is satisfied that the contracts at issue were concluded for the purpose of the development and building of the two original Luas lines. On completion of these lines, in 2004, those contracts came to an end. The Complainants continued in their employment thereafter and it appeared that they did so on implied contracts which are permanent in nature.
Determination
Having so concluded the Court must hold that the Complainants were permanent employees from at least 2004. Accordingly since they were not fixed-time employees in the six months prior to the date on which they made their complaints the Court has no jurisdiction to investigate this dispute.
Signed on behalf of the Labour Court
Kevin Duffy
15th June, 2009______________________
DNChairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.