AWD131

The Rights Commissioner decided that the complaint was “well founded” and ordered the Respondent to pay her the claimed allowance with full retrospection.

The Respondent appealed against that Decision to this Court. The case came on for hearing on 3^rdMay 2013.

Position of the Parties

The Complainant states that having initially qualified as a nurse she undertook a course of further studies and qualified as a midwife in 1972. She states that this was the only route by which one could, at that time, qualify to work as a midwife in this state. She states that, following an agreement with the relevant trade unions, the Department of Health, by way of a Circular letter numbered 112/99 sanctioned the payment of a specialist allowance to qualified midwives working in maternity units. She states that she received this allowance while working as a midwife in the HSE. She states that following her retirement from the HSE in 2009 she commenced working as a temporary agency midwife and was assigned to work in the HSE. She states that in 2011 the Respondent won the contract to become the sole supplier of agency nurses and midwives to all HSE hospitals in all regions with the exception of the HSE West. She states that on the 5^thDecember 2012, following the coming into force of the Act, her employment was taken over by the Respondent and she was assigned work as a midwife with the HSE. She was placed on the relevant point of the HSE scale but was not paid the specialist midwifery allowance. She maintains that the allowance is part of a midwife’s basic pay and accordingly comes within the provisions of Section 6(1) of the Act.

In support of her contention that the allowance forms part of her basic pay the Complainant provided evidence to the Court that the allowance was increased in line with basic pay and attracted a 3% increase provided for as part of the local bargaining clause of the relevant National Agreement between the social partners. She further submits that Article 157 of the TFEU defines pay in terms that are sufficiently broad to encompass this allowance. She further argues that the CJEU has similarly accorded pay a sufficiently broad meaning such as would include this allowance in the definition of basic pay.

The Respondent does not dispute the facts of the case. It submits however that the Act entitles the Complainant to the same basic working and employment conditions as the basic working and employment conditions to which she would be entitled if she were employed by the HSE to perform the same work she performs under her contract of employment with the Respondent. It submits that the Act defines pay in very narrow terms and that the Court cannot expand the scope of that definition beyond what is unambiguously set out in the statute. It relies on Umar v HSE in this regard. It submits that the definition is neither vague nor ambiguous and accordingly must be construed in a manner consistent with the ordinary meaning of the words of the Act. Finally it submits that the definition of pay in the Act is exhaustive. It submits that Pay under the Act means a) basic pay and b) any pay in excess of basic pay in respect of - shift work, piece work, overtime, unsocial hours worked, or hours worked on Sunday. It relies on the legal maxim “expressio unius exclusio alterius” in support of its contention that the definition of pay set out in the Act must be taken to be exhaustive and to permit of no other component other than those specified. Noting that the Act goes on to state that “pay does not include include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies is of no assistance to the Complainant. It submits that the exclusion addresses the requirements of Article 5 in the transposition of the Directive into Irish law. Accordingly it argues that the impugned specialist allowance is not comprehended by the term “pay” within the Act and does not come within the scope of Section 6 of the Act.

Finally the Respondent states that there is now a direct route into the profession of midwifery and that staff that enter the profession through that route do not receive the specialist qualification allowance. It submits that this further supports its submission that the allowance is not part of the Complainant’s basic pay.

Conclusions of the Court

The Law

Section 6(1) of the Act states

• • Subject to any collective agreement for the time being standing approved underSection 8 , an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.

• “basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to—

  (a)Pay

  (b)Working Time

  (c)Rest periods

  (d)Rest breaks during the working day,

  (e)Night work,

  (f)Overtime,

  (g)Annual leave, or

  (h)Public holidays

• (a) basic pay, and
  • 
    (b) any pay in excess of basic pay in respect of—

(ii) piece work,

(iii) overtime,

(iv) unsocial hours worked, or

(v) hours worked on a Sunday,

• • but does not include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies;

The facts of the case are not in dispute. The net issue for the Court to decide is whether the allowance in issue comes within the definition of pay in the Act. If it comes within the definition of Pay the Complainant is entitled to be paid the Allowance. If it does not then she had no entitlement to payment of the Allowance.

The Act does not explicitly provide for the payment of allowances. Pay is defined as “Basic Pay” and any pay in excess of “basic pay” in respect of shift work, piece work, overtime, unsocial hours worked, or hours worked on Sunday. It is clear that the payment of an allowance per se is not encompassed by this definition unless the allowance forms part of “Basic Pay”. The question therefore is whether the allowance is part of basic pay within the meaning of the Act.

The Act does not define basic pay. The Complainant contends that the specialist allowance is paid in respect of a qualification without which she cannot practice as a midwife. She contends that, until very recently, there was no other route by which one could qualify to work as a midwife in this state other than by first qualifying as a nurse and thereafter undertaking a further course of study to qualify to work as a midwife. She submits that the allowance is not paid for simply achieving the qualification. One must also work as a midwife in a maternity unit in order to qualify for payment of the allowance. On this basis she submits that the allowance cannot be considered other than as part of her basic pay.

The Respondent’s submission is that the Complainant’s “Basic Pay” should be understood to mean her salary and no more. It submits that the plain meaning of the words “basic pay” can bear no other interpretation. It further submits that the Act identifies additional payments that may be considered basic pay and that “allowances” are not included in that list. It contends that because of the wording of the Act that list must be considered exhaustive.

In considering the matter the Court notes that the Complainant contends that the allowance is part of her basic pay. She does not contend that allowances per se come within the scope of the Act. Instead she argues that her basic pay is made up of two components viz her salary and the allowance that she is paid in respect of a mandatory professional qualification without which she cannot work as a midwife.

As there is no definition of basic pay set out in the Act, the Court must determine what constitutes basic pay in this case, as a matter of fact, based on the evidence before it and its own specialist knowledge of common practice within the sector.

It is common case that the Complainant qualified to work as a midwife through the only route that was available within the state at the relevant time. The Court notes that this has now changed but does not consider that relevant to the case before it. When the Complainant qualified to work as a midwife there was only one route by which she could to do so and that involved qualifying initially as a nurse and thereafter acquiring an additional qualification as a midwife.

The Court also notes that the Allowance was initially introduced by way of a Departmental Circular Letter No 112/99 issued on the 30^thNovember 1999.

The Court further notes that the Allowance is superannuable and continues to be paid to staff on sick leave and maternity leave.

The Court also notes that the allowance is not included in pay for the purpose of calculating overtime payments, shift rates or other hourly based premium payments.

In determining whether a payment forms part of basic pay the Court would normally have regard to the manner in which the parties themselves regard it. In that regard the Court notes that in Circular Letter 13/2002 issued on the 7^thMarch 2002 dealing with the treatment of a lump sum payments determined by reference to the level of basic pay, the Department of Finance approved payment of a 1% lump sum to certain members of staff in the following terms: -

• “A once-off lump sum equal to 1% of annual basic pay, rounded to the nearest cent, is to be paid on 1 April 2002. In accordance with normal practice, annual basic pay includes allowances in the nature of pay on that date but does not include other additions to pay.”

The Court notes that Government Decision number SI180/20/10/1160A of the 18^thDecember 2012 had the effect of abolishing certain allowances for new entrants to the public service. The decision also identified the manner in which other allowances were to be treated into the future. The Court notes that the Specialist Qualification Allowance is listed under the heading “Classes of allowances to be approved for new beneficiaries but subject to review and/or modification.” However the Court also notes that the Department decided to abolish the Midwifery Allowance for new entrants to the Public Service with effect from the 1^stFebruary 2012. It did not abolish it for directly employed new entrants that entered the service before that date.

On this basis the Court concludes that what constitutes Basic Pay can be ascertained from the manner in which the parties have treated the various elements contended for by either side. In this case the parties themselves treated the Specialist Qualification Allowance as a constituent element of basic pay. Accordingly the Court determines that the Specialist Qualification Allowance in this case is an integral part of basic pay to which the Complainant has an entitlement under the provisions of Section 6 of the Act where her employment commenced before the 1^stFebruary 2012. A midwife, regardless of his or her route to qualification employed directly by the HSE after that date would not receive the Maternity Allowance. Accordingly it ceased to be a part of the basic pay of a midwife newly employed by the HSE through an employment agency would have no entitlement to the allowance under the Act.

Deciding Complaints

Schedule 2 of the Act provides that a Rights Commissioner or this Court, when dealing with a Complaint under the Act, shall do one or more of the following:-

• (a) declare that the complaint was or, as the case may be, was not well founded,

  (b) require the employer to take a specified course of action (including reinstatement or reengagement of the employee in circumstances where the employee was dismissed by the employer), or

  (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration in respect of the employee’s employment,

Determination

The Court finds that the complaint is well founded and requires the Respondent to pay the Complainant the Specialist Qualification Allowance with effect from the 5^thDecember 2011 on a pro rata temporis basis. The Court further instructs the Respondent to pay the Complainant compensation in the sum of €300 arising out of the contravention of the Act.

The appeal is rejected.

The Court so determined.

Signed on behalf of the Labour Court



Brendan Hayes
30th August, 2013______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.