FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : KERRY COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - JAMES WALSH, MAURICE CARMODY, CHARLIE FARRELLY, RICHARD POLLARD, TOM AHERN, MICHAEL CLIFFORD & TONY MCMAHON (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal OF Rights Commissioner's Decisions R-106417-Ft-11, R-106421-Ft-11, R-106427-Ft-11, R-106439-Ft-11, R-106455-Ft-11, R-106482-Ft-11 & R-106560-Ft-11.
BACKGROUND:
2. The Workers and the Employers appealed the Rights Commissioner's Decision to the Labour Court. A Labour Court hearing took place on the 27th November, 2013 and the 2nd March, 2015. The following is the Labour Court's Determination:
DETERMINATION:
This matter came before the Court by way of an appeal by Kerry County Council and a cross-appeal by the seven named Complainants against the Decision of a Rights Commissioner in a claim by the Complainants under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). Separate individual claims were initiated concurrently by the Complainants’ trade union, SIPTU. While the claims were referred on different dates to the Rights Commissioner under the Act, the Court is satisfied that no real significance arises as a result. The claims were heard together by a Rights Commissioner and seven separate Decisions were issued. The issues arising in all seven cases are identical. In these circumstances the cases were conjoined by the Court for the purpose of the appeals. Consequently this Determination applies to each of the Complainants and their employer, Kerry County Council.
In this Determination Kerry County Council is referred to as “the Respondent” and the Complainants are referred to as such.
History of the Appeal
This appeal first came before the Court in April 2014. At that time a number of matters were in issue between the parties. They related,inter alia,to the employment status of the Complainants and whether or not they hadlocus standito bring proceedings under the Act. The Respondent contended that they were not fixed-term employees within the statutory meaning in that they were permanent seasonal workers. The Complainants contended that they were fixed-term employees at all material times and remain so.
The original position of the Complainants was that they became entitled to contracts of indefinite duration by operation of the combined effects of Section 9(1) or 9(2) and Section 9(3) of the Act. They also claimed that the Respondent contravened Sections 6 and 10 of the Act in relation to them. At the first hearing the Court gave some guidance to the parties on the applicable legal principles established by this Court, the Superior Courts and the Court of Justice of the European Union (CJEU). The Court suggested that further engagement between the parties might be fruitful in producing agreement on the matters in issue between them. The parties agreed to adopt that suggestion. The hearing of the appeal was adjourned to facilitate such negotiations.
In July 2014 the Court was informed that a negotiated settlement of the case had not been possible. The Court was asked to reconvene the hearing of the appeal.
The Issues Clarified
The Court convened a Case Management Conference between the parties in October 2014 in order to clarify the remaining points of contention in the case. It became apparent that the question of the Complainants’ entitlement to contracts of indefinite duration was no longer in issue. The Respondent accepted that all seven of the Complainants were entitled to contracts of indefinite duration. Rather, the overriding issue of contention between the parties related to the terms of the contracts of indefinite duration to which they were entitled. There were also unresolved issues in relation to alleged contraventions of Sections 6 and 10 of the Act. These matters will be dealt with later in this Determination. An issue also arises as to the quantum of compensation to which the Complainants are entitled for the Respondent’s failure to acknowledge their rights to contracts of indefinite duration under the Act.
The Court indicated that it would give its Determination on the form and content of the contracts of indefinite duration to which the Complainants are entitled under the Act.
The Complainants’ Pattern of Employment
The Complainants have been employed by the Respondent on what are referred to as seasonal contracts. They are placed on a panel from which workers are drawn from time to time to augment the full-time staff of the Respondent. The duration of each assignment is determined by the work requirements of the Respondent and its need for such augmentation. Historically, these panels have a predetermined lifespan on the expiry of which they are reconstituted. The current panel was constituted in 2001.
Each period of employment (which the Court will refer to as an assignment) was treated as a period of fixed-term employment. It would appear to be accepted that the periods of inactivity between assignments was regarded as a period of lay-off since their placement on the panel created a realistic expectation that they would later be recalled when the need for further assignments arose. In that way the continuity of the Complainants’ employment was preserved within the meaning of the First Schedule of the Minimum Notice and Terms of Employment Acts 1973-2005 which, in accordance with Section 9(5) of the Act, is to be used for the purpose of computing continuity of service.
Positions of the Parties
In their claims before the Rights Commissioner the Complainants contended that they are entitled to contracts of indefinite duration which provide them with permanent full-time employment. They have now modified their claims and contend for an entitlement to contracts of indefinite duration that specify the duration of the employment that they will be offered each year.
The Respondent contends that the contracts of indefinite duration to which the Complainants are entitled should correspond in every respect (other than in relation to tenure) to the fixed-term contracts from which they are derived. That is to say, they should provide them with employment as permanent seasonal workers. Therefore the Complainants would be employed as permanent seasonal workers whose hours of work and duration of each assignment will be dictated by its work requirements and its necessity to augment its full-time staff.
The Law
The starting point is considering the form and content of a contract of indefinite duration that comes into being by operation of Section 9(3) of the Act is the judgment delivered by Laffoy J. on 22ndMarch 2007 inMinister for Finance v Una McArdle[2007] E.L.R 165. Here, in considering a question similar to that which arises in the instant case, the Judge accepted as containing a correct statement of the law, the following passage from this Court’s Determination in the case that was then under appeal: -
- The expression ‘contract of indefinite duration’ should be understood in contradistinction to a contract of definite duration or a fixed-term contract. The terms and conditions of a contract of indefinite duration which comes into being by operation of s.9(3) must therefore be the same as those in the fixed-term contract from which it is derived, as modified by s. 6, in all respects other than its fixed duration. Obviously, these terms will vary from one employment to another and every case will be decided mainly on its own facts.
The decision in McArdle was later applied by this Court in the case ofWilliam Beary v Revenue Commissioners[2011] 22 E.L.R 137. Here the Court stated: -
- The decision of the High Court inMinister for Finance v McArdle [2007] E.L.R. 165is authority for the proposition that where a fixed-term contract transmutes to one of indefinite duration by operation of law the resulting contract is identical to that from which it is derived in every respect other than in regard to its tenure. Consequently a fixed-term worker cannot accrue a better contract than that which he or she held on a fixed-term other than in respect to the circumstances in which the contract will come to an end.
The Court has also had regard to the decision of the High Court inHolland v Athlone Institute of Technology[2012] 23 E.L.R. 1. In that case Hogan J. pointed out that that a finding that an employee acquired a contract of indefinite duration by operation of law does not place such an employee in a superior position to that of an ordinary employee whose status as the holder of a contract of indefinite duration was never in doubt.
Conclusions of the Court on Section 9 Claim
At all material times the Complainants' employment with the Respondent was for a season and in that regard they were required to work less hours than a comparable full-time employee when measured over a period of up to 12 months. Hence, the contracts of indefinite duration that came into being by operation of Section 9(3) of the Act were seasonal in nature. Those contracts did not entitle the Complainants to any fixed or predetermined amount of work in any year. Rather, the employment to which they were contractually entitled was determined entirely by the exigencies of the Respondent’s requirements to augment the work of its full-time staff.
If, as the Complainants contend, the only type of contract of indefinite duration to which they could become entitled by operation of law is one that provides them with an entitlement to a fixed or defined period of employment in each year it would amount to a significantly superior contractual arrangement than that which was provided by the contracts from which they derived. Moreover, if the Complainants are correct in their assertion that any contract of indefinite duration must provide them with definitive periods of employment each year, there would appear to clear objective grounds for not providing them with such a contract. That conclusion arises from the basis for their employment, which is to meet the intermittent or seasonal needs of the Respondent, the duration of which are incapable of precise ascertainment.
Based on the authorities, the outcome contended for by the Complainants is not sustainable in law. It follows that the Respondent is not obliged to provide the Complainants with a contractual entitlement to any definitively prescribed number of hours or periods of employment. The only entitlement that they can claim under the Act is to such hours of work and such assignments as are determined on the same basis as hitherto under the fixed-terms contracts on which they were employed at the time that the within claims were initiated. The judgment of the CJEUinHuet v Universite de Bretagne Occidentale [C-251/11]held that the employment contract of indefinite duration reproduced must be in identical terms to the principal clauses set out in the previous contract from which they derived, unless there are grounds for not doing so and must not be accompanied by material amendments to the clauses of the previous contract in a way that is overall unfavourable to the person concerned when the subject matter of that person’s tasks and the nature of his functions remain unchanged. Therefore as such, the contracts of indefinite duration which they are entitled to by operation of Section 9(3) of the Act will accord with the general arrangements that applied in previous years which were to meet the seasonal requirements of the Respondent.
In consequence, the only practical advantage that can accrue to the Complainants by reason of their statutorily acquired status as permanent employees of the Respondent is that they will remain on the panel for an indefinite duration at their current ranking without the need to periodically reapply for inclusion thereon.
It is therefore the Determination of the Court that in so far as the within claims are concerned the Court finds that their claims for contracts of indefinite duration are well-founded, however, in so far as their claims are directed at obtaining superior conditions to those to which they were entitled, they are not well-founded.
Sections 6 and 10 Claims
The Complainants also alleged contraventions of Sections 6 and 10 of the Act. In effect these are overlapping claims in that they each relate to the filling of certain permanent posts by the Respondent. The Complainants contend that the Respondent confined eligibility to apply for these posts to permanent employees thus denying the Complainants the opportunity to obtain permanent full-time employment. This, the Complainants contend, contravened Sections 6 and 10 of the Act.
The same set of facts cannot be relied upon to maintain separate claims under two distinct provisions of the Act. However, the Court is prepared to consider the claims made in the alternative.
The claims relate to particular instances in which the Respondent advertised for the filling of different permanent posts that had become vacant. It is claimed that the competition for these posts was confined to permanent employees of the Respondent.
The Union provided details of the posts relied upon in its submission to the Court. Some of the vacancies relied upon post-dated the reference of the within claims to the Rights Commissioner on 31stMarch 2011. Any contraventions that may have occurred in respect of those vacancies could not have been comprehended by the claims when they were presented. Other incidents referred to occurred more than six months before the claims were presented. Any cause of action that may have accrued to the Complainants in respect of those occurrences had been extinguished by the statutory time limit by the time the claims were presented.
The only incidents that are within the time limit related to the filling of a post of Tar Depot Operator in October 2010 and the position of Refuse Collection Driver advertised on three occasions between October 2010 and March 2011. The filling of these posts is cognisable by the present claim. The Union put in evidence a copy of the advertisement published by the Respondent for that vacancy. It is headed“To all Permanent Drivers”and states as follows:-
- In accordance with undertakings given previously, the position of Tar Depot Operator is now being advertised to all permanent drivers within the Machinery Section in order to fill the position through re-deployment if appropriate.
Section 10(1) of the Act provides: -
- An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.
This Subsection obliges an employer to inform fixed-term employees of permanent vacancies and that must contain the concomitant obligation to allow fixed-term employees to apply for such vacancies. The only construction that could be placed on the advertisement in question is that it purported to exclude fixed-term workers from consideration for the vacancy to which the advertisement related. That was a clear contravention of Section 10(1) of the Act.
The Respondent did not dispute the contentions made by the Union and accepted that the advertisements for both positions had been restricted to permanent workers only. It stated that, due to the Moratorium on Recruitment and Promotions in the Public Service, it was prohibited from filling the Refuse Collection Driver position when a vacancy arose on the death of the incumbent in August 2010 and therefore it sought expressions of interest on a temporary basis from permanent workers to be reassigned to the role. The Respondent ceased its refuse collection service in December 2012.
The Union alleged that the Respondent was also in breach of Section 10 (3) of the Act as the Complainants were denied access to appropriate training opportunities to enhance their career prospects. In particular it referred to IT training opportunities which were made available to permanent members of staff in the six-month reference period before the date of claim.
The Respondent did not dispute this contention.
Section 10(3) of the Act provides: -
- As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.
This Section obliges an employer to provide fixed-term employees with access to appropriate training opportunities to enhance their careers. It is not disputed that such training opportunities were denied to the Complainants.
Conclusions of the Court on the Sections 6 and 10 Claims
It is now accepted that at the material time the Complainants were regarded as fixed-term employees. In these circumstances the effect of the advertisements was to exclude them from applying for the posts in issue. That constituted a contravention of Section 10(1) of the Act. In these circumstances it is unnecessary to consider if the circumstances in which that occurred separately constituted a contravention of Section 6 of the Act as the Court takes the view that the contravention in relation to the filling of a permanent vacancy should be dealt with by application of Section 10(1) of the Act rather than Section 6.
It is therefore the Determination of the Court that the Respondent was in breach of Section 10(1) of the Act in confining the advertised positions to permanent drivers in the period October 2010 to March 2011 and therefore the Court finds that this claim is well-founded. Furthermore, the Court finds that as the Complainants were denied access to the IT training provided to permanent workers in the same period then the claim under Section 10(3) of the Act is also well-founded.
Determination
The Court determines that the complaint under Section 9 is well-founded. It is the determination of the Court that the Complainants’ fixed-term contracts of employment transmuted by operation of Section 9(3) of the Act to ones of indefinite duration as outlined above. The Court requires the Respondent to comply with the Act by recognising the permanent seasonal nature of the Complainants’ employment.
Furthermore, the Court determines that the Respondent was in breach of Section 10 of the Act. The Court requires the Respondent to ensure that all permanent vacancies are advertised and open to fixed-term employees to apply for. The Court requires the Respondent to ensure that training opportunities are made available to fixed-term employees in the future.
The Court orders the Respondent to pay compensation in the sum of €5,000.00 to each of the seven named Complainants for the combined breaches of Sections 9 and 10 of the Act. The Decisions of the Rights Commissioner are varied accordingly and substituted with the terms of this Determination. The Respondent’s cross-appeals fail.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd March, 2015______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.