FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MUIRIOSA FOUNDATION (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Shanahan |
1. An appeal of an Adjudication Officer's Decision No: ADJ-00003502.
BACKGROUND:
2. This case concerns access to the Nominated Health Agency Superannuation Scheme (NHASS).
- The Union said that when the Claimant received confirmation of her permanent appointment on the 23 February 1999 it stated “for pension purposes this is with effect from 1 January 1999 …. As you are now in a permanent position it is obligatory that you join the Nominated Health Agency Superannuation Scheme”. It was only when the FEMPI legislation was enacted in 2009 that the Claimant discovered she was in the wrong scheme.
The Employer said that the Claimant has been a member of the National Federation of Voluntary Bodies (NFVB) pension scheme for over 18 years. She received reports on an annual basis from by the Irish Pension Trust (IPT) and her payslip makes specific reference to this scheme. If the Claimant had an issue with the scheme she was in, she should have brought it to the Employers attention in 1999.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 5 January 2017 the Adjudication Officer issued the following Recommendation:-
- Accordingly and in conclusion, having read the correspondence and heard the oral evidence I recommend that the letter of the 23 February 1999 be implemented in full. The Complainant is to be offered membership of the NHAS Scheme retrospective to that date. Her IPT benefits to transfer to the NHAS Scheme.
The employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 10 February 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 3 May 2017.
UNION ARGUMENTS:
3. 1. The Claimant has been disproportionately disadvantaged by her employer by being placed into the incorrect pension scheme.
2. She has been precluded from the same opportunities as her colleagues such as voluntary redundancy and early retirement packages and particular career breaks.
3 The Claimant does not enjoy the security of being able to make future plans based on her retirement fund as it will fluctuate with stocks and shares on the market.
EMPLOYER’S ARGUMENTS:
4. 1. The Employer has sought to get the Claimant and her colleagues who are not in the NHASS into that scheme since the matter was brought to their attention.
2. Admission to the NHASS is subject to the approval of the Department of Health & Children. This approval is not forthcoming.
3. This matter is outside the control of the respondent and it is not in a position to permit the Claimant to join the NHASS.
DECISION:
This is an appeal by Muiriosa Foundation against an Adjudication Officer’s Recommendation which found in favour of the Claimant’s claim that she should have been placed on the Nominated Health Agency Superannuation Scheme (NHASS) instead of the National Federation of Voluntary Bodies Pension Scheme (NFVB), a defined contribution scheme managed through the Irish Pension Trust Scheme.
The Claimant had been employed as a Care Assistant since 5th January 1998. By letter dated 23rd February 1999 the Claimant received confirmation of her permanent appointment. The letter stated:-
- …. for pensionable purposes this is with effect from 1 January 1999 …. As you are now in a permanent position it is obligatory that you join the Nominated Health Agency Superannuation Scheme.
More recently she discovered that she had been placed in the IPT scheme, which is a defined contribution pension scheme. The Union on behalf of the Claimant submitted that the Claimant understood from the date of her appointment of permanency that she was a member of the NHASS.
Management rejected the claim stating that the Claimant, along with fifteen other employees, was a member of the NFVB scheme.
The Court notes that both parties accept that this matter is being dealt with by way of a collective dispute and has been the subject of conciliation discussions at the Workplace Relations Commissions on a number of occasions. It is accepted that the Claimant is included in the collective referral. Following a request for an update, the Union informed the Court that a mandate has been received from its membership to progress the issue collectively from conciliation to the Labour Court.
On the basis that this is a collective issue in relation to pay, the Court is prohibited under Section 13 (2) of the Industrial Relations Act, 1969 from investigating the appeal and from making a recommendation on the matter in dispute.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
12th June, 2017Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.