ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000524
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 | CA-00000766-001 | 11/11/2015 |
Date of Adjudication Hearing: 10/03/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with section 13 of the Industrial Relations Act, 1946 I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The complainant had overtime for over 20 years which the respondent employer has advised him is not counted for pension purposes. He seeks for the payment to be included for pension. The complainant has service of over 30 years. He was attached to a machinery yard and it is argued that overtime was regular and rostered and that in accordance with the relevant circular, the payment should be recognised by the Council for the purposes of superannuation. Other colleagues in similar situations received the payment in their pensions. The Council’s argument that the issue should be referred to the Pensions Ombudsman is rejected on the basis that the Ombudsman recently declined to consider a similar problem on the grounds that it was a workplace issue. The union has pursued a number of similar cases and refers to the Labour Court Recommendation AD1480 which upheld a Rights Commissioner in holding that the claimant’s overtime met the criteria in S12/91 and should be included in the worker’s pension. |
Respondent’s Submission and Presentation:
The respondent submits that the complainant did not complete the appeals process in this case. Further the overtime was not regular and rostered. The complainant retired on 20th January 2016, having reached retirement age. In September 2015 he contacted the Council having raised a query if specific overtime would be included in the calculation of his pension entitlement. The Council met him and discussed various elements of overtime and pensionability. The Council reviewed the issues raised by the complainant and he was advised that the overtime in question did not meet the criteria for inclusion in pension. The Local Government Superannuation Scheme provides that overtime is not included in benefit calculations except in certain circumstances which are specified in Circular S.12/91. The Council must comply with the terms of the Circular which include:
“4. The conditions are that the work in respect of which the overtime payments were made:
(a) was scheduled work attached to the office or employment (i.e. the particulars of office or conditions of employment specified that the holder of the office or employment has to perform the particular work on an overtime basis); where a schedule of work is not available the local authority should confirm-
(i) that the overtime was not optional, (i.e. that the person in question had to work the overtime and could not refuse to work it), and
(ii ) that theovertime was part and parcel of the employment of the person in question;
(b) was work of a regular and recurring nature (i.e. that the particular officer or employee was required to perform the duties during specified hours on specified days); and
(c) was work of a kind which could only be performed outside of, and in addition to, the normal hours of work of the grade to which the officer or employee belonged.
(I) the overtime was occasioned by work volume or staff shortages;
(II) the amount of overtime fluctuated (i.e. where there was no regular and recurring pattern to the overtime worked); or
(III) where the overtime worked could have been performed within normal hours”.
The overtime which is the subject of this complaint included overtime undertaken under winter gritting which is weather related and does not meet the criteria provided under sections 4 & 5. The other overtime relates to tar patching which is also of its nature seasonal.
It is argued that the assessment of the complainant’s overtime is correct in that it does not apply to pension. The Council has advised the complainant that disputes should be referred to the Pensions Ombudsman and before that to an internal review. This the complainant did not do
It is submitted that the Workplace Relations Service does not have the jurisdiction with regard to the management of an occupational pension.
Decision:
This dispute arose prior to the complainant’s retirement and I accept the union’s submission that all efforts were made in pursuit of resolution. I note the point regarding the Ombudsman, and I find that I do have jurisdiction to hear and adjudicate on this dispute which arose as outlined.
I find that the terms of Circular S12/91 appear to apply to the complainant’s situation in that he worked regular rostered overtime and I accept his evidence that he would not have been in a position to refuse. The overtime was effectively a part and parcel of his contractual employment. I recommend that his superannuation calculations be amended to reflect the regular overtime in the circumstances of this case.
Dated: 25th May 2016