LCR21191

The dispute concerns approximately 28 catering staff employed at the Respondent’s Dublin Road campus in Galway. Catering staff at this campus have been formally employed by the Galway Mayo Institute of Technology (GMIT) Catering Company (“the Catering Company”) since 1997. This is a company limited by guarantee and is 100% controlled by the Respondent. It is common case between the parties that the workers who are the subject of this dispute, nevertheless, are paid directly by the Respondent through its payroll system; are subject to the Respondent’s human resources policies and procedures; are paid in accordance with an approved public sector pay scale at the attendant rate which is the same rate as is paid to cleaning and attendant staff employed by the Respondent. Unlike the staff directly employed by the Respondent at the attendant grade, however, the catering staff do not have access to a public sector pension scheme. The catering staff, however, may qualify for a non-pensionable gratuity payment, the cost of which is borne fully by the Respondent.

There are two aspects to the dispute referred to the Court:

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  (1)Firstly, the Union is seeking recognition that the catering staff are public servants and as a consequence are entitled to membership of the Education Sector Superannuation Scheme;

  (2)Secondly, the Union complains that the Respondent has breached a collective agreement by varying the hours of work which the catering staff are required for during the period May to September each year since 2009.

(1) Public Servant Status

The Respondent outlined the background to the establishment of the Catering Company in 1995 (to succeed the Galway City VEC subcommittee which previously had responsibility for the provision of catering services to staff and students when what is now an independent Institute of Technology was run under the auspices of the VEC) and the subsequent employment of the catering staff at the Dublin Road campus through that company. The Catering Company is a separate legal entity, and although wholly-controlled and owned by the Respondent, it is a private sector,’ for-profit’ commercial entity and the legal employer of the Dublin road catering staff. For these reasons, the Dublin Road catering staff were historically not permitted to avail themselves of membership of any public sector superannuation scheme.

The Respondent submitted to the Court that the question of what qualifies a worker as a public servant in the educational sector, and the related question of who is entitled to membership of a public sector superannuation scheme, is a matter for the Department of Education and Skills. Two representatives from that Department were also present at the hearing of this matter. One of the Department representatives clarified the Department’s position as follows: Institutes of Technology typically have a cohort of staff that comprise a mixture of public servants (i.e. staff directly employed by the Institute in question) and private sector employees whose employment is funded from non-public sources of revenue; the fact that a worker in the educational sector is employed by an entity other than a public sector educational institution is not in itself a bar to access to a public sector superannuation scheme; express provision in a worker’s contract of employment that his or her post is a pensionable post is a pre-requisite of access to such a scheme; it is a matter for the institute or other legal entity (i.e. the relevant employer) to include the necessary contractual provision in its contracts of employment to satisfy the aforementioned requirement; from the Department’s perspective, there was nothing preventing an employer such as the Respondent from making such a provision in the case of the workers such as the Complainants in this dispute.

Having regards to the parties’ submissions on this aspect of the dispute, and noting, in particular, the Department’s position as outlined above, the Court recommends that the Respondent takes the necessary steps to amend the Complainants’ contracts of employment so as to permit them to avail themselves of membership of the Education Sector Superannuation Scheme.

(2) Variation in Working Hours Contrary to Collective Agreement

A collective agreement has been in place since 1995 regulating the conditions of employment of the Respondent’s catering staff. It provides,inter alia, for payment of staff at the top rate of the Attendant scale and for a 36 to 38 week working year. In practice, the working year for catering staff traditionally ran from September to the Friday before the June public holiday. Staff were then laid off for the summer months. However, for logistical reasons the Respondent took a decision in 2009 to hold its summer examinations at an external venue. This resulted in a decrease in the requirement for catering services at the Dublin Road campus during the month of May. On the other hand, the Respondent has had variable success in attracting additional business in the form of summer courses for foreign students of English at the campus in the June to August period. The latter development has, to some extent, resulted in additional employment opportunities for the catering staff to offset the reduction in work available during May. However, from the Union’s perspective, the number of hours available to individual members during the June to August period is uncertain and haphazard. The Union submits that the arrangement in place is at best a ‘patchwork’ arrangement and is in breach of the 1995 agreement. The Union further submits that the cleaners and other staff employed by the Respondent at the same grade as the catering staff have a September to June contract.

For its part, the Respondent accepts that the necessary decision to relocate the venue at which its summer examinations are held has, since 2009, resulted in a reduction in the hours worked by the Complainants during the month of May. The Respondent, however, has had increasing success, year-on-year, in attracting international students of English to the Institute during the summer months. The Respondent submitted a chart to demonstrate the resulting annual increase in hours worked by the catering staff over the past 3 years, as a result of its success in tendering for the provision of the English language courses. The chart clearly indicates that virtually all catering staff have worked more than 36-38 weeks per annum in the relevant years. This is not disputed by the Union.

The Court accepts that the staff in question now get their 36 to 38 weeks’ work over a 52 week period rather than working straight through from September to the following June public holiday weekend and that this is a variation of the 1995 collective agreement. However, the Court notes that the Respondent is continuing to develop its summer school activities and that as this increases it will continue to reduce the uncertainly pertaining to the availability of hours for the catering staff in the June to September period. The Union for its part acknowledges the Respondent’s efforts in this regard. Both sides accept that it is most unlikely that the Respondent will be in a position to revert to holding the summer examinations on campus in the future.

The Union has requested the Court to direct the Respondent to restore the working year for the catering staff in accordance with the terms of the 1995 agreement. The Court recommends that this aspect of the Union’s claim fails but that the parties should continue their discussions at a local level to find a basis on which the additional work available during the summer months can be rostered in a manner that reconciles the needs of individual members of the catering staff and the Respondent’s requirements.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
1st April 2016______________________
JKDeputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Jason Kennedy, Court Secretary.