ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000294

Complaint for Resolution:

Date of Adjudication Hearing: 10/02/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

Complainant’s Submission and Presentation:

Following the transfer from a Republic of Ireland state promotional body to an ‘all Island’ body set up under the ‘Good Friday Agreement’ (GFA) in 2002 the complainant subsequently opted to transfer into the North/South pension scheme that had been set up specifically for employees of cross border bodies.

In this scheme she paid a contribution rate of 1.5% in accordance with the details set out in the contract of employment.

In 2014 she was advised that UK pension reforms were to be applied to the cross border scheme resulting in an increase in her contribution rate from 1.5% of salary to 7.35%. As a result the superannuation deduction increased from €96.07 in March 2015 to €470.72 in April 2015.

She submits that she at no time consented to the change and notified the respondent of her objection to this but notwithstanding that the increased deduction was made and has continued to be made and she says that this is in breach of the Payment of Wages Act (PWA).

She also submits that It is in breach of the Haddington Road Agreement.

Respondent’s Submission and Presentation:

The respondent relies on the exception in the PWA which permits a deduction where;

‘this is required or authorised to be made by virtue of any statute or any instrument made under statute’ PWA section 5 (1).

Section 5 (c) exempts a payment made

‘in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government the Revenue Commissioners or a local authority for the purposes of the Local Government Act 1941, amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority.

The respondent says that paragraph 3.2 of Annex 1, Part 7 of the British-Irish Agreement Act, 1999, regarding staffing arrangements for cross border bodies empowered the Implementation Body as follows (subject to the approval of the North South Ministerial Council) to;

‘Pay such pensions, allowances and gratuities, or provide and maintain such pension scheme as may be determined’

The respondent says that the amendment to the complainant’s scheme was properly approved at a meeting of the NSMC. It further submitted that these decisions fall within the description of a ‘statutory instrument’ as defined in the Statutory Instruments Act 1947 wherein an SI is defined as

‘an order, regulation, rule, scheme or bye-law made in the exercise of a power conferred by statute

It submitted that the adoption of the Scheme by the Minister for Public Expenditure and Reform is in effect the implementation of a statutory provision by the Minister. While no formal statutory instrument was adopted it should be noted that Section 1 (1) of the Statutory Instruments Act 1947 provides:

“…the expression “statutory instrument” means an order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute”.

Therefore, it submits that a scheme made in exercise of a power conferred by statute is a statutory instrument. In this case, the British Irish Agreement Act 1999 Act allows for the provision and maintenance of a pension scheme by an Implementation Body. Any scheme made pursuant to this provision would be termed a statutory instrument and the Department of Public Expenditure and Reform has legal advice to this effect.

On this basis it submitted that the North South Pension Scheme is a statutory instrument. This statutory instrument provides for the payment of certain pension contributions by employees, as and from 1 April 2015 and amounting to 7.35% of salary for the claimant.

Section 5 (1) (a) provides that a deduction required or authorised by virtue of any statute or any instrument made under statute is not considered to be an illegal deduction. Furthermore Section 5 (5) (C) states that nothing in the section applies to a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision.

Therefore, the employer submits that the deductions made from the claimant’s wages from 1 April 2015 are required/authorised to be made by virtue of an instrument made under statute and as such is not an illegal deduction from her wages.

The respondent also points out that changes to the pension scheme were negotiated with the relevant trade unions resulting in an agreement Republic of Ireland members of the Scheme, including the claimant, would be given the once off option to become either a Core Member or a Reserved Rights Member.   The claimant was provided with this option however she chose not to exercise it and this meant she remained a Core Member in the amended North/South Pension Scheme with revised contributions applying from 1 April 2015.  

Conclusion and Finding

I have carefully considered all relevant submissions, oral and written which were laid before me prior to and in the course of the hearing.

I note the very significantly increased superannuation contributions which have resulted for the claimant.

However, my decision can only have regard to whether the actions of the respondent fall within the exemptions permitted by the Payment of Wages Act.

I find that the deduction does fall within the exemptions permitted by the Act in that the decision of the NSMC falls within the description of a ‘statutory instrument’ as defined in the Statutory Instruments Act 1947 as referred to above in the respondent’s submission.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons outlined in my conclusions and findings I dismiss the complaint

Dated: 11^th  March 2016