Claimant

Employer

Anonymised Parties

A General Operative

A County Council

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00014757-001

03/10/2017

The Claimant brought a claim that his superannuation calculation did not include a period of regular and rostered overtime when he completed duties as a Park Ranger.

The case is as a result of a dispute between our member and his employer in relation to the inclusion of his regular rostered overtime for pension purposes. The claim by our member is that he has been treated in a grossly inequitable way by his employer in the calculation of the superannuation benefits that he received at the time of his retirement from the Councils Cleansing Department. These inequities arise from the fact that our members pensionable calculations did not reflect a calculation of the regular rostered overtime that was part and parcel of his job since he commenced employment in the Councils Parks Department                                                                                                                                                                                                            The calculation of this disputed overtime has been included for other comparable members of staff in the Cleansing   Department and other Departments within the Council. The entitlement to the inclusion of this overtime for pension purposes in the Respondent has also been recognised by both the Rights Commissioner Service,   and the Labour Court in a cases brought by SIPTU on behalf of two of the Complainants colleagues who were also employed in the Cleansing Department. The Rights Commissioner/ Adjudication Officers in their findings saw merit in both claims and recommended that their superannuation entitlements should be recalculated to take into account the regular overtime that they worked.

The Rights Commissioner /Adjudication decisions were upheld by the Labour Court following appeals by the Respondent. In addition the Rights Commissioner Service, the Adjudication Service and the Labour Court have issued decisions in respect of this type of dispute in this and other employments. In a recent decision by the Adjudication Service in relation to a dispute between SIPTU and a County Council the adjudicator found in favour of the unions position. The Rights Commissioner Service and the Adjudication Service have issued further decisions in respect of this principled argument in two further cases involving the Respondent. These two particular decisions dealt with identical claims on behalf of two of the Complainants former colleagues . The Labour Court also issued a similar decision in respect of a dispute between SIPTU and Dublin University.                                    The claim on behalf of the Complainant in respect of the inclusion of overtime is a mirror image of the cases presented by SIPTU and IMPACT on behalf of the previously successful applicants.

As with the previous complainants the Complainant on reaching retirement accumulated 32 years’ service. On reaching retirement age the Complainant received a lump sum and pension based on his length of service as a council employee. However based on the current position being adopted by his employer did not take into consideration the fact that the Complainant as part of his normal working schedule was required to attend for weekend work and Public Holidays to comply with the Councils requirements for street cleaning in the inner city and the clean- up of the market area.                                                                                                          The attendance for this work was required as part of the complainants implied terms and conditions of employment as no written terms were issued to the Complainant at the commencement of his employment. The work involved was assigned to staff in the Cleansing Department on a co-ordinated basis ,in that originally a 4 week roster was utilised as a means of controlling the allocation of the required manpower resources with each individual member of staff holding a permanent position in that roster . With the depletion of existing staff levels the roster requirements were increased in the Complainant’s case to require him to work 2 weekends per month . The hours of attendance for the Complainant duties being 6am to 9 am on Saturdays and 6am to 9am on Sundays. . the Complainant was also rostered for attendance on Public Holidays.                                                                     This type of working arrangement quite clearly fulfils the criteria of regular recurring rostered overtime. Circular S12/91 sets out that in order for overtime to be included for superannuation purposes that the overtime must satisfy the criteria of being worked in exceptional circumstances. We would clearly argue that the overtime in question meets that criteria. This was work solely associated with the complainant’s department and could not have been undertaken by staff members from other sections. The work involved arose out of specific requirements i.e. the city centre and market clean up. In addition, the failure of an employee to attend for the weekend work incurred the punitive effect of being removed from the roster. The nonattendance for normal non-recurring overtime does not have a similar punitive deterrent attaching to it. This argument has been accepted by the Rights Commissioner Service , the Adjudication Service and the Labour Court                                                                                             It is extremely difficult to understand why the overtime in question was not included in the complainants pension calculations when you consider the fact that other members of the weekend working arrangements have secured more beneficial applications to their superannuation entitlements as a direct result of their participation in the aforementioned weekend working arrangements. Included in that group is another individual who had mirror image terms and conditions of employment, grade and status as a Council employee, and yet has received the full benefit of the overtime that is the subject matter of this complaint.

The Council has previously set out a position in that contract had a clause different to other staff which relates to being rostered for weekend overtime. We would have to raise serious concerns in relation to his contract as it is not signed and had to be issued post the privatisation of the Councils refuse collection service in 2000 as the terms of same reflect the revised working patterns agreed with the Trade Unions at that time. There are no logical or apparent reasons as to why the prior Complainant has any greater entitlement than the complainant. We would also request the Adjudicator to note that all managerial and supervisory staff who participated in the rostered overtime were granted the overtime into their pension calculations as a right. In addition the Council have accepted the right of employees to retain their place on the overtime roster when transferring out of the cleansing department. This is reflected in agreements reached with the Council in 2007 in the circumstances where 6 Cleansing Department staff were being transferred to other departments. Under the provisions of that agreement it states that

“There is an existing agreement on the rostering of overtime in cleansing. The 6 men who transfer out of cleansing will remain on this roster for as long as this roster exists” .                                                                  

As a union we would contend that there exists an absence of transparency by the Respondent in the decision making process that has deliberately created what is a clearly inequitable set of pension benefits. In the set of circumstances outlined in the unions submission we would argue that it is incumbent on this employer to create the circumstances whereby the Complainant is given a fair and equitable return in respect of his pension given his long and loyal service to the citizens of his city.       In defending their position the Council has consistently argued that this type of dispute is more appropriate to the Pensions Ombudsman’s Office. This is not a position shared by the Pensions Ombudsman who has in the Complainant’s case clearly taken the view that this is an industrial relation matter proper to this forum. The council have also consistently argued that the overtime involved was voluntary and therefore not covered by the relevant circular. This argument was advanced in the case before the Labour Court in respect of another Council employee. However under questioning from the Labour Court Division hearing that particular case the Council conceded that the work was a necessary part work of the cleansing department and would have had to be contracted out if not undertaken on an overtime basis. This matter has been further addressed in the decision relating to a third employee. In essence each and every defence put forward by the Council in respect of the union’s arguments have previously been considered and rejected by the Pensions Ombudsman the Rights Commissioner Service ,the Adjudication Service and the Labour Court itself .

In the above circumstances, we would request you find in favour of the Unions claim

Following a recent hearing the Respondent committed to carrying out a detailed review of the Complaints file per Circular Letter S. 12/91.

We have reviewed the three conditions under which the overtime payments are made and conclude that the exceptional circumstances where specific conditions are met are not applicable in this instance, i.e;   S.12/91 outlines that overtime payments may only reckon where the work;

(a)    Was 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 has to perform the work on an overtime basis);

The overtime which the Complainant now wishes to reckon for superannuation purposes does not form part of his particulars of post or contract of employment. the Complainant was employed as a General Operative. the Complainant has already received pension credit for regular overtime as a General Operative.

The overtime now in question relates to Park Ranger overtime worked by the Complainant and is therefore not reckonable as per condition (a) above.

(a)(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

the Complainant could and did at times refuse to work the overtime in question.

(a)(ii) that the overtime was part and parcel of the employment of the person in question.

The overtime at no stage formed part and parcel of his employment as he was employed as a General Operative rather than Park Ranger.

(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 on specified days).

While the work was of a regular and recurring nature, the Complainant was not required to work same.

(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.

the Complainant does not fulfil the criteria at (c) above as the overtime worked by him was that associated with Park Ranger duties. the Complainant was employed as a General Operative.

Aside from the conditions under which overtime is reckonable we have focused on the section of the Circular which details the circumstances under which the Minister will not be prepared to give a direction, that payments for overtime shall be part of the salary or wages for superannuation purposes.

In particular Section 5 (i)- the overtime was occasioned by work volume or staff shortages.

the Complainant’s primary duties were that of a General Operative in the Parks Department. Due to staff shortages and a staffing embargo, the Complainant carried out the duties of Park Ranger at weekends. As the Complainant was employed as a General Operative the overtime covering the role of Park Ranger did not form part of his day-to-day duties. The overtime attached to the carrying out of the Park Ranger role only.

The Park Ranger work was not considered compulsory as the Complainant was asked to carry out the role, could refuse and did on occasion.

We have also reviewed 10 years of records relating to the Complainants hours of work- there is some overtime relating to his primary role as General Operative. Indeed, as mentioned earlier, he has already been given the benefit of regular General Operative overtime. The shredding of trees took place after Christmas each year. Given the nature of the work this cannot be considered to be regular, rostered, recurring and compulsory.

The overtime relating to the case before you was completed on a voluntary basis by the Complainant to cover the Park Ranger role. Per Senior Management in Parks, if the Complainant was not available a private company opened and closed the Parks.

Due to the staff shortages cover for Park Ranger duties was required on a Saturday and Sunday only- the Complainant’s normal week was Monday to Friday as a General Operative. The permanent Park Rangers were rostered over weekends also as part of their normal working hours. Employment of an additional Park Ranger would have removed the need for the cover provided by the Complainant.

The crux of the issue lies in the fact that the overtime completed by the Complainant came about as a result of staff shortages. The Circular is explicit in relation to the Ministers inability to allow such overtime to be treated for pension purposes where staff shortages are an issue.

It is our view that the Complainant does not fulfil the strict and detailed criteria of the Circular.

This case was heard in May 2018 and the Respondent was to provide further detail regarding the Sunday overtime worked by the Complainant subsequent to the Hearing but despite two follow up requests from the Adjudicator to supply the information this has not been provided. On November 7th 2018 the Complainants Representative requested a recommendation be issued on the basis of the information already provided. I cannot recommend in this case that the overtime be included in the calculation of pension on two grounds. Firstly, the overtime was not part of the Complainants main duties in his role as a General Operative. It was a secondary role performed due to staff shortages and financial limitations at the time. It was also not “part and parcel” of his standard employment and therefore had an optional element to it. Secondly, on the basis of the information supplied, the overtime was not regular. It was completed only approximately 50% of the time when required (on Saturdays) and when he was not available to perform the overtime work it was performed by a third party therefore showing the optional, non exceptional and non rostered nature of the overtime. While it is disappointing that the Respondent did not supply the information for the Sunday overtime worked I do not believe the lack of this information fundamentally changes the grounds for not recommending the inclusion of the overtime for pension purposes.

Calculation of overtime for pension purposes