FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LIMERICK CITY AND COUNTY COUNCIL (REPRESENTED BY LGMA) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Recommendation.
BACKGROUND:
2. The Employer appealed the Recommendation of the Adjudication Officer to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 10th May 2016. The following is the Decision of the Court:
DECISION:
The Worker was employed by the Local Authority from 1972 until his retirement in March 2015. The pension he received on retirement was calculated solely on the basis of his basic rate of pay and did not reflect what he understands to have been regular and rostered overtime which he was obliged to perform at weekends and on public holidays during the entire course of his employment. The Union submits that the Worker initially performed regular and rostered weekend overtime as part of a 4-week roster arrangement but subsequently he was required to work 2 weekends per month. The Worker told the Court that in total there were some 30 occasions throughout his career on which he was rostered to work overtime but did not work. He always gave advance notice when he knew in advance that he would be unable to attend due to family commitments or illness, for example, and was given permission by his supervisor not to attend. On a small number of occasions, he was unable to attend for overtime duty because of his involvement with the Shannon River Search and Rescue Service.
The overtime in question was performed between 7.30 a.m. and 11.30 a.m. on Saturdays and 7.00 a.m. and 10.00 a.m. on Sundays and Public Holidays. The Union submits that the nature of the overtime performed by the Worker meets the criteria for regular recurring rostered overtime specified in Circular S12/91 and should therefore have been taken into account in the computation of the Worker’s superannuation entitlements.
The Respondent submits that the overtime performed by the Worker in this case was undertaken voluntarily and was not, therefore, compulsory in nature. This is evidenced, according to the Respondent, by the fact that there was no sanction applied if the worker did not undertake such overtime.
The Respondent further submits that the provisions of Circular S12/91 must be interpreted strictly and unless all of the conditions laid down in the Circular are present, any public sector employer is not permitted to allow overtime payments to be reckoned for pension calculation purposes. The Respondent invited the Court to consider, in particular, sections 4 and 5 of Circular S12/91.
Recommendation
Having considered in detail the Parties’ written and oral submissions, the Court is satisfied that the overtime undertaken by the Worker over a period of some 43 years meets the criteria specified in sections 4 and 5 of Circular S12/91 i.e. the overtime in question was ‘not optional’ and was ‘part and parcel’ of the Worker’s employment; was ‘work of a regular and recurring nature’; 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 Worker] belonged’. Furthermore, the Court is also satisfied that the Worker’s overtime was not ‘occasioned by work volume or staff shortages’; that the amount of overtime worked did not fluctuate; and the overtime work could not have been performed within normal hours.
Accordingly the Court recommends that the Recommendation of the Adjudication Officer be upheld.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
19th May 2017______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.