FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. An appeal of an Adjudication Officer's Decision no ADJ-000002291.
BACKGROUND:
2. This case concerns access to the Company Pension Scheme. To access the Pension Scheme an individual must be appointed to the organisation in a permanent position and be between the ages of twenty and fifty.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 7 November 2016 the Adjudication Officer issued the following Recommendation:-
- Having concluded my investigation, I find that there are a number of compelling reasons why I should recommend the complainant for entry to the company pension scheme from his initial date of appointment in November 2005, when he was 47 years of age.
- 1 The complainant was appointed to the company in November 2005. He was paid a regular wage from that date forward on a fixed hours and fixed term basis.
- 2 The Labour Court found that exclusion of a fixed term worker from the company pension scheme was a breach of Section 6 of the Fixed Term Act, 2003. I cannot ignore this precedent. The Rights Commissioner granted access to the company welfare scheme to Mr X in 2010, again in Fixed Term Act, setting.
- 3 The Complainant works alongside workers who are full members of the scheme, his continued exclusion is inequitable and is bound to act as a de-motivator if not addressed in the short term. Everyone worries about family security in the event of an adverse event or illness, the complainant is no different in that regard and his proximity to a supportive pension scheme, which remains outside his reach, needs to be addressed in real time.
- 4 There is provision in the contract of employment to action this recommendation either on an individual or collective agreement.
- Based on all the circumstances of the case and the rationale given, I recommend that the company invite the complainant to join the company pension scheme from November 1, 2005, the commencement date recorded on the complaint form to WRC. I prefer this address of rectification rather than compensation. This recommendation is addressed solely to the complainant and is not applicable outside those circumstances.
- The Respondent appealed the Adjudication Officer’s Recommendation to the Labour Court on the 21 November 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
Two Labour Court hearing took place on 25 January 2017 the 4 July 2017.
3. 1. The Worker was employed on his firstfixed-term contract on 1 November 2005 and his second on the 14 May 2006. He acquired a contract of indefinite duration from the 14 May 2006 being the date on which he received his second fixed-term contract which brought his service over four years.
2. He was treated less favourably than a permanent employee on the basis of his fixed-term status regarding access to the Company Pension Scheme.
3 The Worker is entitled to join the Scheme from the commencement of his employment.
EMPLOYER’S ARGUMENTS:
4. 1. The Employer submits that the Claimant cannot rely on the 2003 Fixed-Term Act as he did not bring a complaint within the statutory time limit. The current proceedings arise under the Industrial Relations Acts which cannot be used as a surrogate for the 2003 Fixed-Term Work Act.
2. The Pension Scheme was set up under a Statutory Instrument that governs all aspects of the Scheme including entry into membership. Under its terms only permanent employees under the age of fifty years are admitted into membership. As the Claimant was not a permanent employee before he reached his fiftieth birthday he could not, as a matter of law, be admitted to the Scheme.
3. The Company operates a PRSA Scheme for those who cannot access the Company Scheme.
DECISION:
The Court has given careful consideration to the extensive submissions of both parties to this appeal.
The Court finds that the Claimant was employed on a fixed-term contract of employment with effect from November 2005. At that time all permanent workers under the age of 50 were required by virtue of their permanent employment status to join the Pension Scheme.
In 2005 the Claimant was less than 50 years old but was, under the terms of the Statutory Instrument under which the Company Pension Scheme was established, ineligible for membership of the scheme as he was not a permanent employee of the Respondent. In that regard he was, as a fixed term worker, treated less favourably than a permanent worker of comparable age.
Furthermore it is arguable that the Claimant accrued an entitlement to a contract of indefinite duration by operation of law on the commencement date of his second-fixed term (specified purpose) contract of employment, namely, 14 May 2006, which contract brought him over the threshold of four years set out in Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003. The Company appears not to have considered this possibility and continued to withhold from him access to the Pension Scheme ignoring the fact that he had not yet reached 50 years of age.
When the Company subsequently acknowledged his permanent status on 13 September 2010, he had passed the maximum age for admission into membership of the Scheme and the Company on that basis continued to withhold from him access to it.
There is a dispute between the parties as to whether the Claimant was at that time offered access to the PRSA Scheme established by the Company for new staff members that were too old to be admitted to the Company Pension Scheme.
In the absence of evidence to the contrary the Court prefers the Claimant’s contention that he was not so advised as contemporaneous correspondence from the Company refers to other Schemes for which he was eligible but makes no reference to the PRSA Scheme.
The Court finds that the withholding of membership of the Pension Scheme from fixed-term workers and the absence of the Company making comparable alternative pension arrangements runs contrary to requirements of both Irish and European law. And while the matter does not fall to be dealt with under the terms of the Protection of Employees (Fixed-Term Work) Act 2003 nor under the terms of Directive No 1999/70/EC Of 28 June 1999 the Court, nevertheless, cannot make recommendations or decisions that run contrary to that legislative framework.
In that context the Court takes the view that the Company should make application to the Pension Scheme to admit the Claimant to membership retrospective to his first day of employment in 2005 with both parties making their full appropriate retrospective respective contributions to give full effect to that. Should that application not be acceded to the Court takes the view that the Company should provide the Claimant with a PRSA that will provide comparable benefits to those that the Claimant would receive had he been so admitted to the Company Pension Scheme. The Court further decides that the Claimant must contribute to the PRSA in the same amount as he would have been required to contribute had he been admitted to the Pension Scheme and the Company to contribute the balance required to generate benefits comparable to those to which he would otherwise have been entitled under the Company Pension Scheme.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
12 July 2015Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.