FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BROTHERS OF CHARITY SERVICES SOUTH EAST (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's / Rights Commissioner's Decision no r-148490-ir-14/JOC.
BACKGROUND:
2. This case concerns a claim to incorporate allowances paid to the Worker into his basic pay for the purposes of pension calculations.
- The Employer said the allowances were not in compliance with the Health Sector Pay Policy and the Employer was advised by the HSE to cease paying them. The Employer made a business case to the HSE to retain the allowances. The HSE approved the retention of the allowances but advised they are not pensionable.
- The Union said the Worker’s salary is not part of the Consolidated Health Scales and that the allowances reflect his core duties and are not additional duties. The allowances should attract pension rights as it is indivisible work.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 18th January 2016 the Adjudication Officer issued the following Recommendation:-
- This recommendation is put forward in the unique circumstances prevailing and it cannot be used as a precedent in any future case that may arise between the parties;
That the allowances should be incorporated into the basic pay for the purpose of pension calculations from the 1st January 2015.
- This recommendation is put forward in the unique circumstances prevailing and it cannot be used as a precedent in any future case that may arise between the parties;
The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 26th February 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 28th March 2016.
UNION’S ARGUMENTS:
3. 1. Upon commencement of his role as Service Manager the Worker was paid FÁS Grade 6 salary which is not linked to the Department of Health consolidated salary scales for pay purposes.
2. The additional duties the Worker fulfils for which he is paid the allowances have been incorporated into his core role and function since 1992.
3. The Workers basic pay and allowances were adjusted by increases that took place under the auspices of national agreements.
EMPLOYER’S ARGUMENTS:
4. 1. The HSE wrote to the Employer in February 2016 advising approval of the retention of the Worker’s allowances. However the allowances would not be pensionable.
2. The Employer is funded through section 38 grants and is bound by HSE Circulars relating to compliance with public sector pay.
3. Superannuation scheme rules do not permit the calculation of benefits using an unapproved salary or allowance to determine pensionable remuneration.
DECISION:
The Court has given very careful consideration to the written and oral submissions of the parties.
The Court considers that the issue underlying this dispute arises from the nature of the arrangements made to remunerate the claimant in respect of the role he is required to perform. At the point when decisions were made as to the appropriate grade for the role the employer decided to allocate a pay scale which derived from FÁS and not the Health Service. Clearly, as the role evolved the unsuitability of the scale allocated to the role manifested itself in decisions to apply allowances to that scale in order to reflect the complexity of the role.
The Court recommends that the role performed by the claimant be assessed with a view to the application of an appropriate Health Sector grade. The grade selected should reflect the full dimensions of the role. There should, as a consequence of this process, be no continuing requirement thereafter to apply allowances to the scale associated with the grade. The Court recommends that the application of an appropriate Health Sector grade should take effect from 1stJune 2015.
The recommendation of the Rights Commissioner / Adjudication Officer is set aside.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
13th May 2016.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.