ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001425
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00001813-001 | 07/01/2016 |
Date of Adjudication Hearing: 27/06/2016
Workplace Relations Commission Adjudication Officer: John Tierney
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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).
Complainant’s Submission and Presentation:
I have recently become entitled to receive a state pension. The amount being paid to me, however, has been reduced significantly because of my supposed lack of social insurance contributions between the period from 1970/71 to 1989/90 during which period I was caring for my young children. I say that this is discriminatory, unlawful and contrary, inter alia, to the Equal Status legislation and to Council Directive 79/7/EEC of 19 December 1978. The Minister's Department does operate a “Homemaker scheme” that enables the absence of contributions after 6 April 1994 to be ignored when calculating pension entitlements. It is abundantly clear that the “Homemaker scheme” was intended to bring Ireland at least partially into line with the requirements of EU law. For younger women, in particular, it has had that effect, albeit only imposing a financial burden on the state in years to come. What the scheme clearly did not do was to address the inequality in the system that had endured up to 1994 and is now continuing to disadvantage older women, including myself, in the context of our contributory pensions. |
It is expected that the Minister and the State will raise the provision of the Social Welfare Acts and related Regulations as a defence to this claim. The Claimant, however, submits that the said legislation is in blatant breach of EU law in the form of Directive 79/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security which has direct effect in Irish Law and which must be taken into consideration by national courts and tribunals. The Directive applies to ‘statutory schemes which provide protection against……old age’ (Article 3). Critically, Article 4.1 provides that;
The Principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status…
Article 5 & 6 were also cited as well as ECJ case law.
Respondent’s Submission and Presentation:
A preliminary point was raised by the Respondent does have sufficient amount of pension contributions as required by Section 108 (3) of the Social Welfare Consolidation Act 2005 which states;
In the case of a claimant who was a homemaker for the duration of any complete contribution year, beginning on or after 6 April 1994, in which the claimant does not have any credited contributions or voluntary contributions, that contribution year shall be disregarded for the purposes of determining the yearly average of that claimant subject to the total number of contribution years so disregarded not exceeding 20
Case law [DEC-S2016-024, DEC-S2016-007] under the Equal Status Act decided by the WRC. Also the High Court case G v Dept. of Social Protection [2015] IEHC 419 was cited in support of the argument that Adjudication Hearing does not have jurisdiction in this matter.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Issues for Decision:
Does the Hearing have jurisdiction in the case.
Legislation involved and requirements of legislation:
Case law
Decision:
In considering the matter of jurisdiction I have taken account of O’Malley J in the above cited G v Dept. of Social Protection where she finds in paragraph 142 that;
Since both are Acts of the Oireachtas, embodying policy choices made by the legislature, it is not open to a court to make a finding of unlawfulness in one on the basis of policy of the other. There has been no assessment of the constitutionality of the choices made in the social welfare, which would be the only legitimate basis for such a finding.
This claim is based on the provisions of the Social Welfare Consolidation Act 2005. These are enactments and as such the claim is under section 14 of the Equal Status Acts. Accordingly, I find I have no jurisdiction to consider the complaint of discrimination referred to in the complaint
Dated: 24 March 2017