ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008822
Parties:
| Complainant | Respondent |
Anonymised Parties | A Secondary School Teacher | A Minister |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00009863-001 | 20/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998 | CA-00009863-002 | 20/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00009863-003 | 20/02/2017 |
Date of Adjudication Hearing: 22/09/2017
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant commenced employment on 29 August 2013 and is employed as a teacher earning €1,412.00 gross fortnightly working 17.3 hours weekly. Her claims are that she did not receive the appropriate pay owing to her decision not to join a trade union and that she did not receive equal pay owing to her decision not to join a trade union and that an employment agreement contains a provision which is discriminatory owing to her decision not to be a member of a trade union. |
Summary of Complainant’s Case: CA-00009863-001
The complainant made a decision not to join a trade union. It was claimed that the terms of the Landsdowne Road Agreement (LRA) were accepted by the TUI trade union but were rejected by the ASTI trade union. The complainant disputes the manner in which the respondent has applied the terms of the agreement rejected by the ASTI and despite her not being a member of either trade union she is treated as though she was a member of the ASTI. Thus despite her carrying out the duties of the LRA, the terms of LRA do not apply to her. She claims that she is owed €4,776 being the calculation of pay for substitution and supervision that has been withheld since 2014. Furthermore, her annual increments have been withheld amounting to €627.00 for 2017 as well as monies due in relation to 2014, 2015 and 2016. This also impacts her AVCs. She outlined that in November 2016, the Minister detailed that “as is the norm with public service collective agreements, the Landsdowne Road Agreement was negotiated with trade unions which are recognised as representing staff in the public service (including teachers). It is normal practice in the public service that the decision of the trade union recognised as holding representative rights for a particular grade or sector will determine the position of all relevant staff in that grade/sector”. The complainant replied after the hearing to correspondence from the respondent and in it the complainant detailed that she was not aware of the ASTI’s decision to sign up to LRA. Furthermore, she detailed that regardless of whether she is to be restored pay from June she is susceptible and vulnerable to the whims of DES with regard to pay. |
Summary of Respondent’s Case: CA-00009863-001
The respondent outlined that in 2013 the Public Services Commission of ICTU agreed the Haddington Road Agreement to run to 30 June 2016. In 2015 the parties agreed a continuation of this agreement to run until September 2018 which was known as the Lansdowne Road Agreement (LRA). The TUI trade union accepted this and ASTI trade union did not originally accept it but did accept it on 11 July 2016. The usual position is that one trade union has representation rights in any particular grade. Where that union is a party to a collective agreement, the agreement applies to all staff in the grade whether union members or not. Similarly where that union is not a party to a collective agreement, the agreement is not applied to any staff in that grade whether union member or not. Where there is more than one union representing a grade such as with TUI and ASTI in this instant case, both unions have representation rights in certain schools known as dual-union schools. In dual union schools the LRA applied only to TUI members who had accepted the agreement. As ASTI did accept the LRA agreement in 2017 the period of her claim is from 11 July 2016 to 9 July 2017 and albeit the complainant is not a member of ASTI she received the benefits of the terms of LRA from this time. It was detailed that it is the normal industrial relations practice in the public service that where there is a collective agreement it is not possible for acceptance or rejection on an individual basis as it would undermine the collective approach taken to public service pay agreements. It was detailed that under the Education Act 1998 teachers : “remunerated out of monies provided by the Oireachtas shall be determined from time to time by the Minister with the concurrence of the Minister for Public Expenditure and Reform”. Section 6 provides “where all or part of the remuneration or superannuation or both …is to be paid out of monies provided by the Oireaches such remuneration and superannuation shall be determined from time to time by the Minister with the concurrence of the Minister for Public Expenditure and Reform” Therefore, a circular issued by DES 0045/2016 clearly outlines that the agreement covers only TUI members and thus it was not possible to apply the terms to the complainant who is not a member of TUI. Copies of correspondence from the complainant was forwarded to the respondent after the hearing and no reply received. |
Findings and Conclusions: CA-00009863-001
For the complainant’s claim to succeed, she must prove that wages “properly payable” to her were unlawfully withheld. She argued that the non-payment represented an unlawful deduction from wages and accepts in her additional correspondence that the period covered is 11 July 2016 to 10th June 2017. Section 5 (6) provides: “Where – 1. The total amount of wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or 2. None of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”. Department Circular DES 0045/2016 sets out that the “The Lansdowne Road Agreement as set out in Section 2 of this Circular will apply to teachers employed in Designated Community Colleges and Community and Comprehensive Schools who are TUI members”. Therefore, I find that as the complainant is not a member of the union detailed by such circular her complaint is not well founded and does not succeed. |
Summary of Complainant’s Case: CA-00009863-002
The complainant claims that she has been discriminated against by the respondent under the grounds of “civil status” on the basis that “civil status” is defined as her right to join or not to join a trade union which she details is also her constitutional right. She details that has not received equal pay and names as her comparators colleagues who are union members who received the benefits of the LRA. |
Summary of Respondent’s Case: CA-00009863-002
It was argued that the fundamental basis of the Employment Equality Acts is to prevent less favourable treatment on any of the nine grounds specified in Section 6(2) of the Act. While the complainant claims that she was discriminated against on the grounds of “civil status” and states that the comparators are “colleagues who are union members”, the “civil status” discrimination ground refers to a person status as being a party to a civil partnership under the act and does not relate to the membership or non-membership of a trade union. Therefore, it was argued by the respondent that her claim should fail as her claim is not covered under one of the nine grounds. |
Findings and Conclusions Case: CA-00009863-002
The complainant claims that the reason she did not receive the terms of the LRA was owing to her non-membership of a trade union which she defines as her “civil status” and that this amounted to discrimination against her contrary to the Employment Equality Acts. She details that her comparators in terms of her equal pay claim are those colleagues who are members of a trade union and who received the terms of the LRA. Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the Complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:- "Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” There are 9 specific prohibited grounds of discrimination under the Equality Acts as follows: The Gender Ground The Civil Status Ground The Family Status Ground The Sexual Orientation Ground The Religion Ground The Age Ground The Disability Ground The Ground of Race (includes race, colour, nationality or ethnic or national origins) The Traveller Community Ground Under Section 2(1) Civil status is defined as meaning “being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved”. No evidence was presented at the hearing in relation to “civil status” as defined under Section 2(1) of the Act and therefore the Complainant has not established the burden of proof necessary to establish a prima facie case and the complaint falls. |
Summary of Complainant’s Case: CA-00009863-003
The complainant made a decision not to join a trade union. She details that the LRA contains a provision which is discriminatory on the basis that it discriminates against those who do not wish to join a trade union. She outlines that the legislation prohibits an employment agreement to contain a provision which is discriminatory. She claims that the ground “civil status” refers to the right of an individual to be a member of a trade union or not. She has exercised her constitutional right not to join a trade union. |
Summary of Respondent’s Case: CA-00009863-003
It was argued that the fundamental basis of the Employment Equality Acts is to prevent less favourable treatment on any of the nine grounds specified in Section 6(2) of the Act. While the complainant claims that she was discriminated against on the grounds of “civil status” and states that the LRA is discriminatory in how it is applied to those who are not members of a trade union; the “civil status” discrimination ground refers to a person status as being a party to a civil partnership under the act and does not relate to the membership or non-membership of a trade union. Therefore, it was argued by the respondent that her claim should fail as it is not covered under one of the nine grounds. |
Findings and Conclusions Case: CA-00009863-003
The complainant claims that the LRA contains a discriminatory provision by its non-application to those who are not members of a trade union. She details that this discriminates against her owing to her non-membership of a trade union which she defines as her “civil status” and that this amounted to discrimination against her contrary to the Employment Equality Acts. Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the Complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:- "Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” There are 9 specific prohibited grounds of discrimination under the Equality Acts as follows: The Gender Ground The Civil Status Ground The Family Status Ground The Sexual Orientation Ground The Religion Ground The Age Ground The Disability Ground The Ground of Race (includes race, colour, nationality or ethnic or national origins) The Traveller Community Ground Under Section 2(1) Civil status is defined as meaning “being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved”. No evidence was presented at the hearing in relation to “civil status” as defined under Section 2(1) of the Act and therefore the Complainant has not established the burden of proof necessary to establish a prima facie case and the complaint falls. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00009863-001 I find that complaint is not well founded and does not succeed. CA-00009863-002 I find that the complainant has failed to establish a prima facie case of discrimination on the civil status grounds, and I dismiss the complaint. CA-00009863-003 I find that the complainant has failed to establish a prima facie case of discrimination on the civil status grounds, and I dismiss the complaint. |
Dated: 15 February 2018
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Payment of wages, trade union membership. Equality, discrimination, equal pay, discriminatory provision |