FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : MOOREPARK TECHNOLOGIES LTD (MTL) (REPRESENTED BY TEAGASC) - AND - (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. 1. New Payscales / Terms & Conditions. 2. Whether Staff Are Public or Private Sector Employees
BACKGROUND:
2. This case concerns a dispute between the Company and Union in relation to two issues; whether the employees are classed as Private or Public Sector workers and related issues concerning the non-payment of wage increases due under the terms of the "Towards 2016" National Wage Agreement.
The Union is claiming that proposals on new terms and conditions were agreed between the parties in 2008 but were ultimately rejected at ballot on the basis that sanction was not given by the Department of Finance for the payment of the agreed increase. In terms of employment status the Union states that the workers are classed as private sector workers for payment purposes and public sector workers for pension purposes and is seeking clarity on the correct status.
The dispute was not resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached the matter was referred to the Labour Court on 21st August, 2009 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 3rd February, 2010, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3 1 It is essential that the employment status of the employees be clarified. If classed as private sector workers, payments awarded under Benchmarking do not apply and if classed as public sector workers they are subject to pay cuts and non payment of National Wage Agreements. In addition, the workers must pay the Public Sector Pension Levy on the basis of their classification for pension purposes. This anomaly results in the worst of both worlds for the workers concerned and needs to be addressed as a matter of urgency.
2 An issue arose in relation to the Company's alleged inability to pay the agreed 3.5% increase under the Towards 2016 Transitional Agreement. This will be dealt with through referral to the appropriate third party dispute resolution machinery.
COMPANY'S ARGUMENTS:
4 1 The organisation is a commercial entity which has Tegasc as its majority shareholder. It's Articles of Association provide that issues of remuneration are subject to sanction from Teagasc's parent Department (Agriculture, Fisheries and Food). The staff in question cannot be regarded as public sector for pay purposes as they could not be included in the staff numbers of Teagasc due to the public sector mortorium. In addition the employere's salaries are paid from the Company's accounts and not by the Government Department.
2 In 2001 it was agreed that the employees would join the Teagasc Public Sector Superannuation Scheme. This was more advantageous to the workers as a private sector pension scheme would have been a defined contribution scheme only.
3 The Company is claiming inability to pay the 3.5% pay increase due under the Towards 2016 Transitional Agreement, which formed part of the jointly negotiated proposals agreed in 2008. On this issue the Company comply with the provisions set out in the Agreement and is willing to attend Conciliation on the matter.
RECOMMENDATION:
The Court has been asked to adjudicate on whether the Claimants are public sector or private sector employees. The Company stated that they are treated as private sector employees for the purposes of pay and public sector for the purposes of pension.
A second issue relates to a jointly negotiated set of proposals to revise terms and conditions of six Plant Operators which has been rejected by the Union due to the Company’s non-implementation of the 3.5% increase under“Towards 2016 Review and Transitional Agreement”.
Claim (i) Public Sector or Private Sector Employees
The Union has difficulties with the dual classification as it contended that the employees receive the worst case scenario of both treatmentsviz.employees were denied Benchmarking awards as they were classified as private sector employees; the Department of Finance vetoed a 3.5% increase due under “Towards 2016 Review and Transitional Agreement”due to its impact on the pension; the public sector pension levy has been applied to the employees and the public sector pay cuts will apply to their pay.
The Company, established in 1993, is a private sector Company operating on a commercial basis, with Teagasc as the major shareholder owning a 51% holding and the remainder held by companies in the food industry sector. Under its Articles of Association the number of employees and their remuneration are subject to the sanction of Teagasc, the Department of Agriculture, Fisheries and Food and Department of Finance. In 2001, following negotiations between the parties on the introduction of a pension scheme, the employees joined the public sector contributory Teagasc Superannuation Scheme.
Having considered the oral and written submissions of the parties, the Court is satisfied that the employees are somewhat unique in having dual status. It is satisfied that pay and pay matters for these employees must be separated from all matters relating to their pension. The Court is of the view that when the employees joined the public sector Teagasc Superannuation Scheme it did not alter their status as private sector employees for pay and other non-pension matters.
The Court is satisfied that the reality of the situation is that they are classified as private sector for pay purposes and should be treated as private sector for all matters related to pay and therefore they should not be subject to restrictions imposed on the pay of public sector employees. Similarly, they are treated as public sector for pension purposes and accordingly are bound by whatever restrictions pertain to those covered by the public sector Teagasc Superannuation Scheme.
Claim (ii)December 2008 Jointly Negotiated Proposals
The Court notes that should SIPTU wish to invoke Clause 1.11 (ii) Section 1:Private Sector Pay and Related Issuesof“Towards 2016 Review and Transitional Agreement”the Company is prepared to attend conciliation on the matter.
Therefore, the Court recommends the December 2008 jointly negotiated proposals should now be implemented.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd February 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.