ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00004340 

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

Date of Adjudication Hearing:  02/11/2016

Workplace Relations Commission Adjudication Officer:  Peter O'Brien

Procedure:

In accordance with Section 13.2 of the Industrial Relations Act 1969 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).

Attendance at Hearing:

Complainant’s Submission and Presentation:

1. The dispute  concerns a complainant by our member alleging that he is being treated in a grossly inequitable way arising from the circumstances in which the Respondent plan to calculate his superannuation benefits upon his impending retirement.

1. These inequities arise from the fact that The Complainant’s pensionable calculations do not reflect a calculation of the regular rostered overtime that formed part and parcel of his job since he commenced employment with the council’s cleansing department. The Complainant’s employment commenced in 1972.

1. The calculation of this disputed overtime has been included for other comparable members of staff who worked with the council, including those employed in the cleansing department. The issue concerning the entitlement to have the disputed overtime included in the calculations for pension purposes has previously been recognised by both the Rights Commissioner and by the Labour Court in the case of a named work colleague of the Complainant). The Rights Commissioner recommended that the superannuation calculations should be recalculated to include the regular overtime undertaken by his work colleague. The Respondent appealed the recommendation of the Rights Commissioner, however the recommendation was upheld following a hearing of the case by the Labour Court.

1. A number of similar disputes have come before both the Adjudication Services and the Labour Court in recent times. In the case of a worker and Tipperary County Council Decision No. ADJ-00000524 the Adjudication Officer held that “the overtime was effectively a part and parcel of his contractual employment” and recommend that his superannuation calculations be amended to reflect the regular overtime in the circumstances of this case.

1. In the case of a worker and University College Dublin Recommendation No. LCR21262the Labour Court held that “that the Claimant worked six hours' compulsory overtime for a period in excess of twenty years, that it was regular and rostered, that it formed part of his conditions of service and it was in the nature of work that could not be carried out in the normal course of his employment. In these circumstances the overtime worked met the standard Civil and Public Service conditions for classification as pensionable salary”.

1. As per the cases attached to the submission, the Complainant’s complaint relates to an identical issue. The Complainant has been employed with the council for a period of 44 years. In anticipation of his impending retirement and being cognisant of the issues faced by his work colleague at the time of his retirement, The Complainant requested a printout of his proposed pension calculations and he was presented with a document by the council purporting to be the basis from which his pension would be calculated.

1. This calculation did not include the regular overtime worked by him since his commencement with the cleansing department of the Respondent. The Complainant challenged this position and sought the assistance of his trade union IMPACT.

1. IMPACT wrote to the Council on the 20th October 2014, and on the 21st November 2014 and again on the 16th December 2014 before finally getting a response to the correspondence on the 19th December 2014 wherein the Council set out their position as follows, that the provisions of circular letter S.12/91 is being adhered to by the Council and does not apply to overtime undertaken at weekends by Council employees. This overtime, while scheduled, is not compulsory and does not comply with the terms of the above mentioned circular letter.

1. On the 19th February 2016 the Complainant wrote to the Respondent and raised a dispute with them regarding their refusal to recalculate his pension entitlements taking into consideration his regular and rostered overtime.

1. As part of his normal working schedule the Complainant was required to attend for weekend work in order to comply with the councils requirements for street cleaning in and about the city centre and to attend for the market clean up.

1. The attendance for this work was required as part of the Complainant’s implied terms and conditions of employment. Upon the commencement of his employment with the council he was not presented with a written document outlining the main terms and conditions of employment. The work involved was distributed amongst the staff assigned to the cleansing department on a co-ordinated basis which included the use of a 4 week roster which was drawn up by management in order to control the allocation of the manpower resources wherein each individual worker held a permanent position on that roster.

1. With the depletion of existing manpower the roster was increased and in the Complainant’s case the current position is that he works two weekends per month on street cleaning which includes Saturdays from 7.30am to 11.30am and Sundays from 7.00am to 10am. He also works on the market clean up once every four weeks on Saturday from 2.30pm to 7pm. In addition to these hours, The Complainant was also rostered to work on Public Holidays. These hours are set out on the street cleaning roster on which The Complainant holds a permanent position. This clearly fulfils the criteria of regular rostered overtime.

1. The Respondent has consistently argued that this type of dispute is more appropriate to the Pension Ombudsman’s Office. However, this has been clarified by the Pension Ombudsman in a recent application by a colleague of the complainant, when the Ombudsman clearly stated that this type of dispute is an I.R. dispute and is a matter more appropriate to an employment forum.

1. The Local Government Superannuation Scheme provides that overtime is not included in benefit calculations except in certain circumstances which are specified in Circular letter 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    overtime payments were made was –

• (a) 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 the overtime 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.

1. IMPACT will argue that the above criteria applies in the Complainant’s case. The overtime in question generally resulted from the specific operational requirements of the cleansing department of The Respondent (i.e. the City Centre lean up and the Market clean up), where overtime was deemed to be necessary and had, in effect, become an accepted work practice and formed part and parcel of a The Complainant’s conditions of employment.

1. The failure of an employee to attend for rostered overtime incurred the punitive effect of that employee being removed from the roster for a period of time in order to act as a deterrent against future infractions of that type, the non-attendance for normal non-recurring overtime does not have a similar punitive deterrent attaching to it. 

1. A schedule of work was prepared by management, the overtime in question was not optional, and it formed part and parcel of the Complainant’s Terms and Conditions of Employment, in which case the overtime complies with paragraph 4(a) of Circular S12/91.

1. The overtime was of a regular and recurring nature and working to the schedule meant that the Complainant was required to perform the duties during specified hours on specified days in which case it complied with paragraph 4(b) of Circular S12/91.

1. The overtime worked by the complainant was work of a kind that could only be performed outside of, and in addition to, the normal hours of work of the grade to which the Complainant belonged. This work was solely associated with the cleansing department to which the Complainant was assigned, in which case the overtime in question complied with 4(c) of Circular S12/91.

In view of the foregoing, we respectfully request that the Adjudicator would,

• (a) find in favour of the claimant and declare that the case is well founded, and make a declaration to the effect that the overtime in question was regular and rostered overtime, and that it formed part and parcel of the conditions of service of the complainant, and that it was in the nature of work that could not be carried out in the normal course of his employment, and in the circumstances that the overtime worked met the standard Civil and Public Service conditions for classification as pensionable salary; and

• (b) issue a recommendation, directing that the Respondent should recalculate The Complainant’s pensionable entitlements to reflect his regular and rostered overtime.

Respondent’s Submission and Presentation:

The Complainant works as a driver with the Council and works in the street cleaning division.   His complaint is as follows; “the decision of management to exclude overtime from my superannuation calculations amounts to inequitable treatment.  Other comparable staff has had their overtime calculated into their superannuation entitlements and management has decided not to apply the same criteria in my case.  I am due to retire next year.”

The Council submits that the appropriate forum in respect of individual complaints regarding the pension entitlements of individual employees is the Pensions Ombudsman. There is a recognised process that exists in respect of that type of dispute.  It should be noted that the Pensions Ombudsman has upheld the Council’s position in at least one previous case.

Secondly, the reckon ability of overtime is governed by circular Letter S.12/91. This Circular provides that overtime shall only be reckonable for pension purposes in exceptional circumstances and where specified conditions are fulfilled’.

The conditions pertaining to Circular Letter S. 12/91 are outlined at point 4 of the circular and in particular condition 4(a)(i) requires 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).   

The work being done in this instance involves street cleaning on Saturday and Sunday primarily in the City Centre area. Employees receive overtime payments of 4 hours on a Saturday and 3 hours on a Sunday. There is also street cleaning done on Public Holidays for 3 hours and on the clean up after the Saturday market which involves two payments one for 2.5 hours and the other for 4.5 hours.

The work at the weekend is a continuation of the type of work done in the course of normal duties during the week which involves litter picking, the use of mechanical sweepers, side loaders and refuse trucks.  The market overtime involves cleaning up after the market, using the mechanical sweepers and the refuse trucks are used to empty the bins. For the market the City & County Council provides a recycling area from which the operatives take away rubbish and separate it for collection by the local refuse collector.

The work is scheduled and part and parcel of the street cleaning department operations but members of staff are not required by explicit or implied conditions of employment to carry out this work.*

The decision to attend is optional and each employee involved has control over the decision to attend or not.  If the work were compulsory, then disciplinary action would have been invoked for non attendance.

Attached to the submission were copies of documentation issued to SIPTU in September 1997, concerning a fellow employee of the Complainant, and the issue of overtime being included for pension purposes. The Council clearly indicated their position at that time on the matter.  This position has not changed and pertains to the Complainant in this instance. 

Attached was a statement from retired Superintendent, Street Cleaning Department setting out the discretionary nature of this overtime.

The Complainant has complained that other comparable members of staff have had the overtime included*.  One member of staff was awarded certain overtime where he had been issued with specific Written Statement of Terms of Employment.  Those terms of employment were issued uniquely to that member of staff and only the overtime specified on those Terms and Conditions of Employment have been included for pension purposes.  No other member of staff was issued with comparable Terms of Employment not least the Complainant.  Please see the Terms and Conditions of Employment issued to the Complainant.

A second member of staff was awarded overtime arising from a Labour Court Decision, Appeal Decision No. AD1480 applies.  However, this decision stated that unique circumstances pertained to that case. 

The Pension Ombudsman is the appropriate forum for decision in respect of disputes surrounding individual pension entitlements.  The granting of overtime to one employee was done in the unique circumstances of a Labour Court decision and the holding by another employee of unique and specific written terms of employment. 

Finally, notwithstanding the above, the overtime does not meet the criteria of Circular Letter S12/91.  The provisions of Circular Letter S12/91 are clear. It requires 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).  There was no consequent disciplinary action for not having worked as rostered.

The Council does not accept that the overtime in question was compulsory. The Council therefore requests that that you find in its favour in respect of this claim.

Decision:

Section 13.3 of the Industrial Relations Act 1969 requires that I make a Recommendation in relation to the complaint(s)/dispute(s).

Having given careful consideration to the submissions of both parties to this dispute, I find that the Complainant worked regular and rostered overtime over the major course of his working time in his current role. The Complainant worked overtime on a constant basis due to the nature of the job and the time of day/week that the Complainant needed to work to get the job done. The Respondent stated at the Hearing that the Complainant missed about 30 overtime occasions in five years between 2010 to 2015, however this gives an overtime worked ratio of around 90% of the overtime opportunity in question. Any deviations from working this roster were not material and were generally for major family events, sickness or exceptional circumstances. In these circumstances the overtime worked meet the Civil and Public Service conditions for classification for pensionable salary. Accordingly, on the particular facts and unique circumstances of this case, I find merit in the claim and recommend accordingly. I find that the average overtime earnings during the hours of 7.30am to 11.30 am on Saturdays and 7am to 10am Sundays in the five years prior to the date of this claim should be averaged and included for pension calculation purposes to reflect the reality of the Complainants regular and rostered overtime in the lead up to his retirement or such other standard and recognised method that the Respondent uses to include regular and rostered overtime for pension purposes.

Dated:   08 February 2017

                        CORRECTING ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT, 1997

This Order corrects the original Recommendation issued on  8th February 2017 and should be read in conjunction with that Recommendation and Decision

ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00004340 

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

Date of Adjudication Hearing:  02/11/2016

Workplace Relations Commission Adjudication Officer:  Peter O'Brien

Procedure:

In accordance with Section 13.2 of the Industrial Relations Act 1969 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).

Attendance at Hearing:

Complainant’s Submission and Presentation:

1. The dispute  concerns a complainant by our member alleging that he is being treated in a grossly inequitable way arising from the circumstances in which the Respondent plan to calculate his superannuation benefits upon his impending retirement.

1. These inequities arise from the fact that The Complainant’s pensionable calculations do not reflect a calculation of the regular rostered overtime that formed part and parcel of his job since he commenced employment with the council’s cleansing department. The Complainant’s employment commenced in 1972.

1. The calculation of this disputed overtime has been included for other comparable members of staff who worked with the council, including those employed in the cleansing department. The issue concerning the entitlement to have the disputed overtime included in the calculations for pension purposes has previously been recognised by both the Rights Commissioner and by the Labour Court in the case of a named work colleague of the Complainant). The Rights Commissioner recommended that the superannuation calculations should be recalculated to include the regular overtime undertaken by his work colleague. The Respondent appealed the recommendation of the Rights Commissioner, however the recommendation was upheld following a hearing of the case by the Labour Court.

1. A number of similar disputes have come before both the Adjudication Services and the Labour Court in recent times. In the case of a worker and Tipperary County Council Decision No. ADJ-00000524 the Adjudication Officer held that “the overtime was effectively a part and parcel of his contractual employment” and recommend that his superannuation calculations be amended to reflect the regular overtime in the circumstances of this case.

1. In the case of a worker and University College Dublin Recommendation No. LCR21262the Labour Court held that “that the Claimant worked six hours' compulsory overtime for a period in excess of twenty years, that it was regular and rostered, that it formed part of his conditions of service and it was in the nature of work that could not be carried out in the normal course of his employment. In these circumstances the overtime worked met the standard Civil and Public Service conditions for classification as pensionable salary”.

1. As per the cases attached to the submission, the Complainant’s complaint relates to an identical issue. The Complainant has been employed with the council for a period of 44 years. In anticipation of his impending retirement and being cognisant of the issues faced by his work colleague at the time of his retirement, The Complainant requested a printout of his proposed pension calculations and he was presented with a document by the council purporting to be the basis from which his pension would be calculated.

1. This calculation did not include the regular overtime worked by him since his commencement with the cleansing department of the Respondent. The Complainant challenged this position and sought the assistance of his trade union IMPACT.

1. IMPACT wrote to the Council on the 20th October 2014, and on the 21st November 2014 and again on the 16th December 2014 before finally getting a response to the correspondence on the 19th December 2014 wherein the Council set out their position as follows, that the provisions of circular letter S.12/91 is being adhered to by the Council and does not apply to overtime undertaken at weekends by Council employees. This overtime, while scheduled, is not compulsory and does not comply with the terms of the above mentioned circular letter.

1. On the 19th February 2016 the Complainant wrote to the Respondent and raised a dispute with them regarding their refusal to recalculate his pension entitlements taking into consideration his regular and rostered overtime.

1. As part of his normal working schedule the Complainant was required to attend for weekend work in order to comply with the councils requirements for street cleaning in and about the city centre and to attend for the market clean up.

1. The attendance for this work was required as part of the Complainant’s implied terms and conditions of employment. Upon the commencement of his employment with the council he was not presented with a written document outlining the main terms and conditions of employment. The work involved was distributed amongst the staff assigned to the cleansing department on a co-ordinated basis which included the use of a 4 week roster which was drawn up by management in order to control the allocation of the manpower resources wherein each individual worker held a permanent position on that roster.

1. With the depletion of existing manpower the roster was increased and in the Complainant’s case the current position is that he works two weekends per month on street cleaning which includes Saturdays from 7.30am to 11.30am and Sundays from 7.00am to 10am. He also works on the market clean up once every four weeks on Saturday from 2.30pm to 7pm. In addition to these hours, The Complainant was also rostered to work on Public Holidays. These hours are set out on the street cleaning roster on which The Complainant holds a permanent position. This clearly fulfils the criteria of regular rostered overtime.

1. The Respondent has consistently argued that this type of dispute is more appropriate to the Pension Ombudsman’s Office. However, this has been clarified by the Pension Ombudsman in a recent application by a colleague of the complainant, when the Ombudsman clearly stated that this type of dispute is an I.R. dispute and is a matter more appropriate to an employment forum.

1. The Local Government Superannuation Scheme provides that overtime is not included in benefit calculations except in certain circumstances which are specified in Circular letter 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    overtime payments were made was –

• (a) 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 the overtime 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.

1. IMPACT will argue that the above criteria applies in the Complainant’s case. The overtime in question generally resulted from the specific operational requirements of the cleansing department of The Respondent (i.e. the City Centre lean up and the Market clean up), where overtime was deemed to be necessary and had, in effect, become an accepted work practice and formed part and parcel of a The Complainant’s conditions of employment.

1. The failure of an employee to attend for rostered overtime incurred the punitive effect of that employee being removed from the roster for a period of time in order to act as a deterrent against future infractions of that type, the non-attendance for normal non-recurring overtime does not have a similar punitive deterrent attaching to it. 

1. A schedule of work was prepared by management, the overtime in question was not optional, and it formed part and parcel of the Complainant’s Terms and Conditions of Employment, in which case the overtime complies with paragraph 4(a) of Circular S12/91.

1. The overtime was of a regular and recurring nature and working to the schedule meant that the Complainant was required to perform the duties during specified hours on specified days in which case it complied with paragraph 4(b) of Circular S12/91.

1. The overtime worked by the complainant was work of a kind that could only be performed outside of, and in addition to, the normal hours of work of the grade to which the Complainant belonged. This work was solely associated with the cleansing department to which the Complainant was assigned, in which case the overtime in question complied with 4(c) of Circular S12/91.

In view of the foregoing, we respectfully request that the Adjudicator would,

• (a) find in favour of the claimant and declare that the case is well founded, and make a declaration to the effect that the overtime in question was regular and rostered overtime, and that it formed part and parcel of the conditions of service of the complainant, and that it was in the nature of work that could not be carried out in the normal course of his employment, and in the circumstances that the overtime worked met the standard Civil and Public Service conditions for classification as pensionable salary; and

• (b) issue a recommendation, directing that the Respondent should recalculate The Complainant’s pensionable entitlements to reflect his regular and rostered overtime.

Respondent’s Submission and Presentation:

The Complainant works as a driver with the Council and works in the street cleaning division.   His complaint is as follows; “the decision of management to exclude overtime from my superannuation calculations amounts to inequitable treatment.  Other comparable staff has had their overtime calculated into their superannuation entitlements and management has decided not to apply the same criteria in my case.  I am due to retire next year.”

The Council submits that the appropriate forum in respect of individual complaints regarding the pension entitlements of individual employees is the Pensions Ombudsman. There is a recognised process that exists in respect of that type of dispute.  It should be noted that the Pensions Ombudsman has upheld the Council’s position in at least one previous case.

Secondly, the reckon ability of overtime is governed by circular Letter S.12/91. This Circular provides that overtime shall only be reckonable for pension purposes in exceptional circumstances and where specified conditions are fulfilled’.

The conditions pertaining to Circular Letter S. 12/91 are outlined at point 4 of the circular and in particular condition 4(a)(i) requires 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).   

The work being done in this instance involves street cleaning on Saturday and Sunday primarily in the City Centre area. Employees receive overtime payments of 4 hours on a Saturday and 3 hours on a Sunday. There is also street cleaning done on Public Holidays for 3 hours and on the clean up after the Saturday market which involves two payments one for 2.5 hours and the other for 4.5 hours.

The work at the weekend is a continuation of the type of work done in the course of normal duties during the week which involves litter picking, the use of mechanical sweepers, side loaders and refuse trucks.  The market overtime involves cleaning up after the market, using the mechanical sweepers and the refuse trucks are used to empty the bins. For the market the City & County Council provides a recycling area from which the operatives take away rubbish and separate it for collection by the local refuse collector.

The work is scheduled and part and parcel of the street cleaning department operations but members of staff are not required by explicit or implied conditions of employment to carry out this work.*

The decision to attend is optional and each employee involved has control over the decision to attend or not.  If the work were compulsory, then disciplinary action would have been invoked for non attendance.

Attached to the submission were copies of documentation issued to SIPTU in September 1997, concerning a fellow employee of the Complainant, and the issue of overtime being included for pension purposes. The Council clearly indicated their position at that time on the matter.  This position has not changed and pertains to the Complainant in this instance. 

Attached was a statement from retired Superintendent, Street Cleaning Department setting out the discretionary nature of this overtime.

The Complainant has complained that other comparable members of staff have had the overtime included*.  One member of staff was awarded certain overtime where he had been issued with specific Written Statement of Terms of Employment.  Those terms of employment were issued uniquely to that member of staff and only the overtime specified on those Terms and Conditions of Employment have been included for pension purposes.  No other member of staff was issued with comparable Terms of Employment not least the Complainant.  Please see the Terms and Conditions of Employment issued to the Complainant.

A second member of staff was awarded overtime arising from a Labour Court Decision, Appeal Decision No. AD1480 applies.  However, this decision stated that unique circumstances pertained to that case. 

The Pension Ombudsman is the appropriate forum for decision in respect of disputes surrounding individual pension entitlements.  The granting of overtime to one employee was done in the unique circumstances of a Labour Court decision and the holding by another employee of unique and specific written terms of employment. 

Finally, notwithstanding the above, the overtime does not meet the criteria of Circular Letter S12/91.  The provisions of Circular Letter S12/91 are clear. It requires 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).  There was no consequent disciplinary action for not having worked as rostered.

The Council does not accept that the overtime in question was compulsory. The Council therefore requests that that you find in its favour in respect of this claim.

Decision:

Section 13.3 of the Industrial Relations Act 1969 requires that I make a Recommendation in relation to the complaint(s)/dispute(s).

Having given careful consideration to the submissions of both parties to this dispute, I find that the Complainant worked regular and rostered overtime over the major course of his working time in his current role. The Complainant worked overtime on a constant basis due to the nature of the job and the time of day/week that the Complainant needed to work to get the job done. The Respondent stated at the Hearing that the Complainant missed about 30 overtime occasions in five years between 2010 to 2015, however this gives an overtime worked ratio of around 90% of the overtime opportunity in question. Any deviations from working this roster were not material and were generally for major family events, sickness or exceptional circumstances. In these circumstances the overtime worked meet the Civil and Public Service conditions for classification for pensionable salary. Accordingly, on the particular facts and unique circumstances of this case, I find merit in the claim and recommend accordingly. I find that the average overtime earnings during the hours of 7.30am to 11.30 am on Saturdays and 7am to 10am Sundays in the five years prior to the date of this claim should be averaged and included for pension calculation purposes to reflect the reality of the Complainants regular and rostered overtime in the lead up to his retirement or such other standard and recognised method that the Respondent uses to include regular and rostered overtime for pension purposes.

Dated:   08 February 2017