FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : MUIRIOSA FOUNDATION (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Foley Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Pension Issue
BACKGROUND:
2. This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 22 December 2017 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 8 February 2018.
UNION’S ARGUMENTS:
3. 1. The Claimants have been disproportionately disadvantaged by the employer in that they alone are placed in a defined contribution pension scheme.
2. The Claimants are most aggrieved that they are not in the same pension scheme as their colleagues who commenced employment before and after 1999.
EMPLOYER'S ARGUMENTS:
4. 1. The nature of their recruitment does not entitle them to access to the NHASS.
2. The decision to allow access to the NHASS lies with the Department of Public Expenditure, and therefore, the employer has no decision making function in this matter.
RECOMMENDATION:
The Court has given very careful consideration to the written and oral submissions of both parties.
The matter before the court essentially relates to a claim for access to the Nominated Health Agency Superannuation Scheme (NHASS) or, failing that, the provision of arrangements, including lump sum on retirement, equivalent to the NHASS to the Claimants by the employer. It is understood that the eight Claimants are a subset of a group of fourteen staff of the employer who are not members of the NHASS.
The Court has been advised that decisions as regards access to the NHASS scheme are a matter for the Department of Public Expenditure and Reform (DPER) and that the employer has no role in that regard. The Court was advised that the employer is not a decision maker as regards access to the scheme and that the decision maker, DPER, has decided that the Claimants should not be afforded access to the scheme. That decision was apparently communicated to the employer via the then Department of Health in 2014 and by Health Business Services of the HSE in November of that year.
The Court finds itself in a difficult position insofar as the matter before it is presented as an industrial relations matter but at the same time the Court is advised that any concession of the claim could have unspecified but significant consequences and that the question of access to the NHASS is driven by what appear to be rules and technical arrangements associated with the operation of the scheme.
Insofar as implications of concession of the claim are concerned the Court appreciates that the employer’s speculation in this regard is driven by advice from central Government Departments and that the employer cannot elaborate on the meaning of its assertion in that regard. The reality however for the Court is that it is being warned of consequences but not being informed as to what those consequences are.
Insofar as the technical aspects of the NHASS are concerned the Court has very little detail available to it. The Court, for example, has not been made aware as to whether any members of the scheme nationally are analogous to the claimants in terms of employment history. The Court appreciates that the employer is not, by itself, in a position to clarify these matters but it is a challenge for the Court to consider the claim before it in the absence of comprehensive detail of this nature.
In industrial relations terms the Court can agree that it appears less than reasonable that, in a workforce of 1,000 approximately, the eight claimants (and fourteen staff overall) should not be afforded access to the same pension scheme as their colleagues who have been recruited before and since the recruitment of the claimants to carry out the same functions and roles as the Claimants. The matter is exacerbated further in the case of two of the affected individuals who were advised in writing by the employer upon recruitment that they were mandatorily required to become members of the NHASS but in respect of whom the employer subsequently failed to implement that arrangement. The Court notes that the then CEO of the employer speculated in 2010 that the failure to admit all claimants to the NHASS was ‘probably due to an administrative oversight’.
The Trade Union has clarified that, in the absence of a capacity for technical reasons to afford access to the NHASS to the Claimants, the employer should make the financial arrangements necessary to place them in the same situation as if they were afforded access to the NHASS. The Court has no detail of the financial or other ramifications of this aspect of the claim. The employer confirmed to the Court that it has no funds available to make such an arrangement and that any such arrangement would require support from its funding authorities. The Court in the absence of detail as regards the financial ramifications of this aspect of the claim is unable to recommend either in favour or against its concession.
Insofar as the Trade Union has claimed access to the NHASS the Court recommends that the parties engage at the appropriate level with the decision makers in this regard to establish clearly the technical parameters of the NHASS and, as appropriate, the basis for an assertion that concession of the claim could have very significant consequences for the operation of pension schemes across the public sector.
In all of the circumstances therefore the Court cannot recommend in favour of concession of the claim presented but does recommend further engagement at the appropriate level and if necessary further engagement through normal procedures following such engagement.
Signed on behalf of the Labour Court
Kevin Foley
LS______________________
16 February 2018Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Louise Shally, Court Secretary.