FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : DODDER VALLEY PARTNERSHIP - AND - PSEU DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Employer contribution to the Job Club Pension Fund.
BACKGROUND:
2. The case before the Court concerns a claim by the Union on behalf of two of its members currently employed in an administrative capacity in the Dodder Valley Partnership located in Tallaght, Dublin. The Dodder Valley Partnership, a jobs training initiative, was previously funded by FAS, however since January, 2012 it is wholly funded by the Department of Social Protection. In 2004, the Claimants signed up to the Employer's pension scheme which at that time received its employer contributions directly from FAS. In April 2011, the Claimants were informed that FAS would no longer be funding the pension scheme and subsequently funding ceased in May, 2011. The Union, on behalf of its members, is currently seeking retrospective restoration of employer contributions to the pension scheme and for the continuation of same going forward. The Employer rejects the Union's claim arguing that it is not in a position to concede the claim.
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 the 21st March, 2012 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 13th July, 2012.
UNION'S ARGUMENTS:
3. 1. The Union contends that FAS continues to fund the pension schemes of staff located in other projects and as such should continue to fund the pension scheme in Dodder Valley Partnership.
2. The Union further contends that the employer contributions in respect of the Claimants' contributions is a relatively small amount in terms of the overall budget made available to the Employer.
EMPLOYER'S ARGUMENTS:
4. 1. The Jobs Club initiative in Dodder Valley Partnership is funded by the Department of Social Protection. At present there is no funding available to the Partnership to fund the pension scheme.
2. The Employer in this case does not decide on how funding is allocated and as a result is not in a position to concede the Union's claim.
RECOMMENDATION:
The Court has carefully considered the submissions of both parties to this dispute.
The issue before the Court concerns two employees that had exercised an option under their contract of employment to contribute to a pension scheme on the basis that the Employer would also contribute an amount to the scheme equal to double the employee's contribution to a maximum of 10% of salary. This arrangement worked satisfactorily until FAS withdrew its funding of the Employer's contribution with ultimate effect from December 2010. The Employer submits that all of its funding was originally provided from FAS. Following a restructuring of the state agency all of the funding for these workers is now provided by the Department of Social Protection. The Employer submits that whilst it wishes to comply with the terms of the contract of employment it simply does not have funds to discharge this liability.
The Union submits that the Employer entered into a contract of employment with the two complainants and asks the Court to uphold the Worker's entitlements to have the terms of their contracts honoured.
The Court notes that all relevant parties, including the Funding Agency FAS, were aware at all times that the Employer had entered into pension commitments in respect of these two employees. The Court further notes that the funding agency consistently approved funding for the Employer's contribution to the pension funds of the two employees between 2004 and 2010.
In these circumstances the Court recommends that the Employer honour the contracts of employment of the workers concerned and commit to making the pension contributions in respect of the two Claimants in this case.
Given the source of funding available to the Employer the Court recommends that the parties liaise with the Department of Social Protection for the purpose of restoring the funding necessary to enable the Employer discharge its contractual obligation.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
1st August 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.