FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : CITY OF DUBLIN VEC - AND - IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Employment Status of 19 General Operatives
BACKGROUND:
2. The case before the Court concerns a claim by the Union on behalf of its members in relation to the position of 19 general operatives. The Workers are employed by the City of Dublin VEC (CDVEC) in various colleges throughout the city and work, for the majority, from September to June each year. In August 2010, the Workers were notified that their contracts were not being renewed and their employment was effectively terminated. Those Workers entitled to redundancy were notified of same. The Union contends that the workers were permanent "seasonal" or "sessional" workers who have filled vacancies before the Public Service Moratorium and the Public Service (Croke Park) Agreement 2010-2014 and maintains that the Employer is making these Workers compulsorily redundant. The Union also states that the Workers were not provided with a fixed term contract but instead were given letters instructing them to return to work in September.
The dispute could not be 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 dispute was referred to the Labour Court on 2nd September 2010, in accordance with Section 26(1) of the Industrial Relations Act 1990. A Labour Court hearing took place on the 9th September 2010.
UNION'S ARGUMENTS:
3. 1. The Workers have filled vacancies within the CDVEC prior to the Public Service Moratorium and thePublic Service (Croke Park) Agreement. The Union contends that the principles of neither such agreement should apply to these Workers now.
2. There was an expectation amongst these "sessional" Workers that they would eventually gain full time permanency through their good working records given the fact that they were repeatedly required to return to work.
3. The duties and roles carried out by the Workers still require completion and cannot be fulfilled by remaining staff resources.At present no alternative staffing arrangements have been put in place.
EMPLOYER'S ARGUMENTS:
3. 1. The Employer is bound by the terms of thePublic Service (Croke Park) Agreement 2010-2014 and the Public Service Moratorium on Recruitment applies to this group of workers.
2. The Workers were employed under temporary fixed-term contracts and those who were not entitled to contracts of indefinite duration were made redundant in line with the Public Service Agreement.
3. TheEmployer has acted strictly in accordance with the provisions of the Public Service Agreement and therefore should not suffer the threat of pending industrial action as a result.
RECOMMENDATION:
The net issue before the Court relates to the employment status of 19 workers employed by the City of Dublin VEC who are to be made redundant on foot of the moratorium on recruitment in the Public Sector, which is accepted as part of the Public Service Agreement 2010-2014 (The Croke Park Agreement). The VEC contends that the workers concerned are fixed-term workers and that the renewal of their employment is precluded by the moratorium. The Union accepts that the renewal of fixed-term contracts (except in circumstances which are not relevant in this case) is precluded. However, it is the Union’s case that the workers are not fixed-term employees. Rather, it contends, they are seasonal or sessional workers and, as such, are outside the ambit of the moratorium.
The workers are employed during the academic year. They are then let go in or about the last week in June but in the expectation that they will be recalled at the commencement of the next academic year in September. This has been the consistent practice over many years. The workers are furnished with letters, for social welfare purposes, which, in effect, confirm that they are being placed on lay-off. The Court is fully satisfied that the reality of the situation is that the workers in question are laid-off during the months of July and August and that their employment is not terminated.
The Court was also told that prior to the enactment of the Protection of Employees (Fixed-Term Work) Act 2003 workers in this category were regarded as temporary part-time employees. Since the enactment of that legislation they have been issued with contracts which are expressed to be fixed-term contracts. However, a workers employment status is to be ascertained from the reality of the situation rather than the label which is attached to their employment.
Having considered all of the factual circumstances surrounding the employment of these workers the Court is satisfied that they are not fixed-term employees in any meaningful sense in which that term is understood. They are continuously employed in meeting the fixed and permanent needs of the VEC and they are placed on lay-off for two months of every year. It is accepted that a lay-off does not constitute a termination of employment.
In the Court’s view that workers concerned are properly classifiable as temporary part-time or seasonal employees rather than temporary fixed-term workers.
The Court so recommends
Signed on behalf of the Labour Court
Kevin Duffy
17th September 2010______________________
SCChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.