ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002199

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 21/11/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 and or Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaint(s)/dispute(s) to me by the Director General, 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).

This ADJ 2199 is closely associated with ADJ 2286.

Complainant’s Submission and Presentation:

Summary of Respondent’s Submission and Oral Presentation:

CA-00003008-001

The Complainant was employed under the Community Employment Initiative by Respondent A – the Respondent Community Employment Project Ltd. He was effectively on placement with Respondent B the Local Community/Citizens Information Service - the CIS Service – called here Respondent B

The Respondent (A ) maintained that under Section 7 of the Protection of Employees (Part-Time Work) Act, 2001 – referred to as the 2001 Act - the Complainant did not qualify as “ a part time worker” on the hours of work criterion i.e. he worked less hours than other employees. This was maintained not to be the case. He worked the same hours as other employees and therefore was not a Part Time worker.

He therefore had no Comparator as required by section 7(2) of the Act.

The Respondent A has no relationship with the Local CIS –Respondent B. Respondents A and B are not “Associated employers” within the meaning of the Act.

Without prejudice to the foregoing there is Objective Justification for any alleged differences (which are denied) under Section 9(2) of the Act.

The principal ground being that the Complainant is engaged on a Community Employment Scheme which is designed to help people who are long term unemployed to get back to work by offering part time and temporary placements in jobs based in their local communities.

CA-00003008-002

The Complainant completed a required course provided as part of his placement with Respondent B. This did not lead to a change in his terms and conditions of employment such as to justify a claim under the Terms of Employment (Information) Act, 1994 –referred to as the 1994 Act.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and or the Protection of Employees (Part-Time Work) Act, 2001 and or the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Issues for Decision:

1. Is the Complainant a qualifying Part Time worker of Respondent A as defined in the Protection of Employees (Part-Time Work) Act, 2001

2. Are Respondents A and B “Associated Employers” to justify the Complainant’s claim for parity of wages with other employees of Respondent B

3. Regardless of the answers to questions 1 and 2 above are there Objective Grounds to justify any differences in rates of pay?

Legislation involved and requirements of legislation:

Protection of Employees (Part-Time Work) Act, 2001

Terms of Employment (Information) Act, 1994

Decision:

CA-00003008-001

Pertinent facts

All cases rest on their own facts.

Question 1 above: –Part Time /Full Time Worker?

The Complaint was employed under the community Employment Initiative by Respondent A – Contracts of Employment given in evidence.

His hours of work were 19.5 hours over a seven day period. The Respondent A did not have “equivalent or comparable” ` full time employees.

This is a major technical obstacle to the Complainant’s claim.

Question 2 above: Respondents/A and B –Associated Employers?

Respondent A is directly funded by funds provided by the Department of Social Protection.

Respondent B is a separate legal corporate entity with its own Board of Directors, CRO number etc. However the ultimate paymaster is the Department of Social Protection.

For the purposes of the Complainant’s case, taking Section 7 (5) of the Act I was happy that a minimum standard of Association applied.

In addition section 7(2)[c) applies to the Complaint’s case of being an Information Officer.

The employee is employed in the same industry or sector of employment as the relevant part time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

Question 3 Above: Are there Objective grounds to justify the difference in rates of Pay as claimed by the Complainant

The principles involved in this issue are discussed in detail by Frances Meenan in Chapter 6 of Employment Law: Round Hall 2014 -2015 update

“In respect of employment conditions, part time workers shall not be treated in a less favourable manner than comparable full time workers solely because they work part time unless different treatment is justified on objective grounds “

Section 12(1) of the Protection of Employees (Part-Time Work) Act, 2001 Act provides:

“A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.”

The economic argument was raised in the Labour Court. On that point, the Labour Court cited Stapleton v Revenue Commissioners[1998] I.R.L.R. 466; (C-243/95) [1998] E.C.R. I-3739; 215 and accepted that an employer cannot justify discrimination solely on the ground of the avoidance of costs. Dunne J. in that case cited Del Cerro ( Del Cerro Alonso v Osakidetza-Servico Vadco De Salud (C-307/05) [2007] E.C.R. I-7109)

“The court held that that concept of ‘objective reasons’ must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed term employment contracts. Those circumstances may result in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social policy objective of a member state …

The same interpretation is necessary, by analogy, regarding the identical concept of ‘objective grounds’ within the meaning of Clause 4(1) of the Framework Agreement.

In those circumstances, that concept must be understood as not permitting a difference in treatment between fixed term workers and permanent workers to be justified on the basis that the differences provided for by a general, abstract national norm, such as a law or collective agreement.

On the contrary, that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.”

The issue of cost cannot justify unequal treatment, and the court held that the purpose of the legislation would be defeated “if cost alone was accepted as a defence”. ( Buckley v National University of Ireland Maynooth [2011] E.L.R. 324)

Dunne J., in the Stapelton v Revenue case quoted above further accepted the test in Del Cerro Alonso, “namely, that the unequal treatment responds to a genuine need; is appropriate for achieving the objective pursued and is necessary for that purpose”.

In the case in hand the Complainant was employed under the Community Employment Scheme sponsored by the Department of Social Protection. This scheme, a special Social Protection employment initiative, was designed to assist persons out of the regular workforce for some time in a transition to new employment – specific opportunities were provided for the scheme participants to gain work experience and become “Job ready”.

The rates of pay were never those of “regular” workers –the scheme was not a mechanism to provide a substitute for “regular workers”.

The Community Employment Scheme was a specific Social Policy programme of the State introduced in a time of record unemployment and especially long term unemployment.

The differences in rates of pay with regular employees was clearly an “Objective Ground” justified on legitimate Social Policy objectives of the State

To quote J.Dunne above

“namely, that the unequal treatment responds to a genuine need; is appropriate for achieving the objective pursued and is necessary for that purpose.

The Community Employment Initiative clearly meets these criteria.

Summary

Accordingly the claim for Parity with Respondent B “regular workers” must fail.

As regards the Point in Question 1 above regarding the Technical issue raised this is also a sufficient if somewhat lesser ground for rejecting the claim.

CA-00003008-002

The Complainant completed a required course provided as part of his placement with Respondent B.   This did not lead to a change in his terms and conditions of employment under the Community Employment Initiative such as to justify a claim under the Terms of Employment (Information) Act, 1994.

Accordingly this element of the claim is not well founded and must be dismissed.

Dated:   12/04/2017