This is a correction order issued pursuant to section 39 Organisation of Working Time Act 1997 and or section 41(16) of the Workplace Relations Act 2015
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00007689
Parties:
| Complainant | Respondent |
Anonymised Parties | A deputy principal of a school | A Government Department |
Representatives |
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Complaint(s):
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-00010304-001 | 19/03/2017 |
Date of Adjudication Hearing: 13/11/2017
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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).
Background:
The Complainant worked for 30 years and a teacher and is currently the deputy principal of a Community School. She was a member of TUI for many years but in November 2014 she decided to discontinue her membership with that union. After that point she was no longer a member of a teacher’s union. The terms of the Haddington Road Agreement (HRA) were applied to her by the Respondent however, despite applying to her for one year, the terms of Lansdowne Road Agreement (LRA) were not applied to her after July 2016. This was on foot of a circular issued by the Respondent. Department Circular 45/2016 stated that unless a teacher was a member of a union which was a signatory to the Lansdowne Road Agreement (LRA), which is a collective agreement which was open to be entered into between the Respondent and the teachers’ unions, the circular stated that it applied only to the sectors that were represented by signatory unions. Circular 45/2016 applied on different sectors of teachers, depending on the different types of school and because the Complainant was in a dual representation school, the circular stated that the LRA did not apply to her because she was not a member of the TUI. Conversely, the preceding HRA applied to the Complainant even though she was not a member of the TUI. The complaint is that the Complainant was treated as if she was an ASTI member who, at the material time, had opted not to be a signatory to the Lansdowne Road Agreement (LRA) and yet, because she was not a member of any teaching union, despite expressly agreeing with the terms of the LRA she was not allowed be a signatory to the agreement. The issue in this case is whether by failing to allow her the increments that arose under the LRA, was this an unlawful deduction under the Payment of Wages Act 1991 in circumstances where she did not consent to the deductions being made. |
Summary of Complainant’s Case:
1. The Complainant has been a teacher for nearly 30 years. 2. The Complainant has been a deputy principal in a designated community college since 2003 3. The Complainant was a member of the TUI from 1996 until 2014 at which point she left the TUI 4. HRA applied to all teaching staff regardless of union membership 5. LRA became operative in July 2015 and the increments that were agreed under LRA were initially paid to the Complainant which lasted for one year. 6. In July 2016 circular 45/2016 was issued by the Respondent. This stated that the increments would only be paid to those teachers who were members of the union that had signed up to LRA. 7. Pursuant to this circular, in September 2016 for the first time, deductions were made to the Complainant’s salary. 8. In September 2016 the Complainant had indicated in writing that she wished, as a non-union member to be bound by the terms of LRA. She wished to be an individual signatory to the agreement. 9. She was told that LRA increments did not apply to her because of Circular 45/2016 as she was not in TUI she could not be a signatory to LRA. 10. The Complainant submits that she is being treated adversely, as if she were a member of ASTI, when she is not, nor has she ever been. 11. She seeks a finding that the deductions from her salary are in breach of the Payment of Wages Act 1991 |
Summary of Respondent’s Case:
1. The Complainant is not being treated as a member of ASTI, she is being treated as a teacher who is not a member of a union and as such, circular 45/2016 does not apply to her. 2. The deductions to her salary, are not deductions but rather are the failure to apply the increments that were allowed under the LRA together with the emergency deductions that FEMPI being restored. It amounts to a loss of €134.21 per fortnight. 3. However, if it is found that the failure to pay her these increments constitute deductions under the definition of the Payment of Wages Act 1991, then these arise as a result of Circular 45/2016 being “an instrument of statute” under the meaning of section 5 (a) of the Payment of Wages Act 1991 and consequently are authorised. 4. Circular 45/2016 applies to all teachers in the TUI who were signatories to LRA. 5. Under the circular under paragraph 2 the entitlements to the salary increments agreed under LRA were done on a sector basis as follows: 6. For teachers working in schools in the voluntary secondary sector, which encompasses predominantly ASTI members, only a small number of TUI members were entitled to the salary increments under LRA. In these schools, non-union members did not get the benefit of the increments 7. For teachers working in schools in the ETB sector, which encompasses predominantly TUI members, all of these teachers were entitled to the salary increments, apart from a small number of ASTI members who did not. Non-union members did get the benefit of the increments. 8. For dual union schools (both designated community colleges and community and comprehensive schools) they being schools in which TUI members and ASTI members were both present, the TUI members got the benefit of the LRA increments, the ASTI members did not and non-union members did not. The Complainant was in the designated community college sector and as she was not a member of the TUI, she did not receive the salary increment. 9. The matter is moot at the time of the hearing because the issued was resolved on 9 June 2017 when ASTI (and with that the few non-union teachers) reached an agreement with the Respondent that they will be bound by the terms of LRA and therefore the claim is a retrospective one and is limited to the period 11 July 2016 and 9 June 2017. 10. The retrospective claim is to cover losses as follows: a) Salary increments that were frozen between 11 July 2016 -June 2017 b) S&S allowance due on 1 September 206 c) The alleviation of the FEMPI reductions for higher earners d) €1000 increase paid to public servants under LRA not paid between April – June 2017 e) The reduction of pay reductions for higher earners not paid between April-June 2017 11. In the Complainant’s case this means a loss of €134.21 per fortnight. 12. In respect of the complaint that the failure to pay the above amount is in breach of the Payment of Wages Act 1991, this claim is denied on the following bases: i. Section 24 (6) of the Education Act 1998 states that a teacher’s remuneration “shall be determined from time to time by the Minister with the concurrence of the Minister for Public Expenditure and Reform.” ii. The LRA was a collective bargaining agreement that was agreed between the Respondent and the TUI iii. The Complainant’s salary is that which is properly payable to a teacher who is not a signatory to the LRA. It is not an agreement which can be entered into on an individual basis. iv. To allow teachers to individually opt in or opt out of collective agreements would undermine the practical enforceability of collective bargaining agreements. TO negotiate terms of contracts on an individual basis would place too high a burden on the resources of the Respondent. Furthermore, it would lead to the fragmentation of the voluntary and collective industrial relations bargaining framework. v. The potential parties to the LRA were the Respondent and the teachers’ unions. In 2015, only the TUI signed up to that agreement, therefore the ASTI and non-union affiliated teachers were not parties to the LRA. vi. If the Complainant had wished to sign up to the terms of LRA, she could have joined the TUI which were a party to the LRA. She could not as an individual teacher so join. vii. The claim under the Payment of Wages Act 1991 is denied firstly because the Complainant’s wages were not deducted. Rather, she did not get the benefit of the terms of a collective bargaining agreement that she fell outside. viii. In the alternative, if there was a deduction then Circular 45/2016 which gave effect to the LRA is an instrument of statute and section 5 of the Payment of Wages Act 1991, permits a deduction to be made |
Decision:
Section 41 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.
This is a claim under the Payment of Wages Act 1991. Under section 5 of the 1991 Act deductions from wages are prevented unless that are (a) required by statute or any instrument made under statute (b) required by virtue of a term in the employee’s contract of employment (c) if the employee has given his prior consent in writing As (b) and (c) do not apply the question to be considered is whether the circular 45/2015 is an instrument made under statute which authorises the deduction to be made. Circular 45/2016 I find that Circular 45/2016 is an instrument of statute under section 5 of the Payment of Wages Act 1991. The circular is a direction issued by the Respondent to notify the school managerial authorities of payroll changes that apply on foot of Lansdowne Road Agreement. The circular states at paragraph 7. “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. The Financial Emergency Measures in the Public Interest Act 2013 and 2015 as set out in section 3 of their circular will apply to all other teachers employed in such schools.” For clarification purposes, section 2 of the circular sets out the sectors that are covered by LRA and that is determined by TUI membership. Section 3 refers to the fact that the application of LRA is entirely conditional upon adherence to its terms by the teachers to whom it is applied. The circular then proceeds to set out how TUI members may present their pay claims under the LRA. I am satisfied that circular 45/2016 is an instrument of statute in that it is a circular that complies with section 24 (6) of the Education Act 1998 which determines the remuneration to be paid to teachers. As the Complainant was in receipt of salary increments under the LRA for one year (between July 2015 and July 2016), I find that the discontinuance of these increments in July 2016 did constitute a deduction from her wages. However, as the deduction was made pursuant to an instrument of statute under section 5 of the Payment of Wages Act 1991, I find that this case is not well founded and must fail. |
Dated: 31.01.2018
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
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ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00007689
Parties:
ComplainantRespondentAnonymised PartiesA deputy principal of a schoolA Government Department Representatives
Complaint(s):
ActComplaint/Dispute Reference No. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00010304-001
Date Of Receipt. 19/03/2017
Date of Adjudication Hearing: 13/11/2017
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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).
Background:
The Complainant worked for 30 years and a teacher and is currently the deputy principal of a Community School in the midlands. She was a member of TUI for many years but in November 2014 she decided to discontinue her membership with that union. After that point she was no longer a member of a teacher’s union. The terms of the Haddington Road Agreement (HRA) were applied to her by the Respondent however, despite applying to her for one year, the terms of Lansdowne Road Agreement (LRA) were not applied to her after July 2016. This was on foot of a circular issued by the Respondent. Department Circular 45/2016 stated that unless a teacher was a member of a union which was a signatory to the Lansdowne Road Agreement (LRA), which is a collective agreement which was open to be entered into between the Respondent and the teachers’ unions, the circular stated that it applied only to the sectors that were represented by signatory unions. Circular 45/2016 applied on different sectors of teachers, depending on the different types of school and because the Complainant was in a dual representation school, the circular stated that the LRA did not apply to her because she was not a member of the TUI. Conversely, the preceding HRA applied to the Complainant even though she was not a member of the TUI. The complaint is that the Complainant was treated as if she was an ASTI member who, at the material time, had opted not to be a signatory to the Lansdowne Road Agreement (LRA) and yet, because she was not a member of any teaching union, despite expressly agreeing with the terms of the LRA she was not allowed be a signatory to the agreement. The issue in this case is whether by failing to allow her the increments that arose under the LRA, was this an unlawful deduction under the Payment of Wages Act 1991 in circumstances where she did not consent to the deductions being made.
Summary of Complainant’s Case:
1. The Complainant has been a teacher for nearly 30 years. 2. The Complainant has been a deputy principal in a designated community college since 2003 3. The Complainant was a member of the TUI from 1996 until 2014 at which point she left the TUI 4. HRA applied to all teaching staff regardless of union membership 5. LRA became operative in July 2015 and the increments that were agreed under LRA were initially paid to the Complainant which lasted for one year. 6. In July 2016 circular 45/2016 was issued by the Respondent. This stated that the increments would only be paid to those teachers who were members of the union that had signed up to LRA. 7. Pursuant to this circular, in September 2016 for the first time, deductions were made to the Complainant’s salary. 8. In September 2016 the Complainant had indicated in writing that she wished, as a non-union member to be bound by the terms of LRA. She wished to be an individual signatory to the agreement. 9. She was told that LRA increments did not apply to her because of Circular 45/2016 as she was not in TUI she could not be a signatory to LRA. 10. The Complainant submits that she is being treated adversely, as if she were a member of ASTI, when she is not, nor has she ever been. 11. She seeks a finding that the deductions from her salary are in breach of the Payment of Wages Act 1991
Summary of Respondent’s Case:
1. The Complainant is not being treated as a member of ASTI, she is being treated as a teacher who is not a member of a union and as such, circular 45/2016 does not apply to her. 2. The deductions to her salary, are not deductions but rather are the failure to apply the increments that were allowed under the LRA together with the emergency deductions that FEMPI being restored. It amounts to a loss of €134.21 per fortnight. 3. However, if it is found that the failure to pay her these increments constitute deductions under the definition of the Payment of Wages Act 1991, then these arise as a result of Circular 45/2016 being “an instrument of statute” under the meaning of section 5 (a) of the Payment of Wages Act 1991 and consequently are authorised. 4. Circular 45/2016 applies to all teachers in the TUI who were signatories to LRA. 5. Under the circular under paragraph 2 the entitlements to the salary increments agreed under LRA were done on a sector basis as follows: 6. For teachers working in schools in the voluntary secondary sector, which encompasses predominantly ASTI members, only a small number of TUI members were entitled to the salary increments under LRA. In these schools, non-union members did not get the benefit of the increments 7. For teachers working in schools in the ETB sector, which encompasses predominantly TUI members, all of these teachers were entitled to the salary increments, apart from a small number of ASTI members who did not. Non-union members did get the benefit of the increments. 8. For dual union schools (both designated community colleges and community and comprehensive schools) they being schools in which TUI members and ASTI members were both present, the TUI members got the benefit of the LRA increments, the ASTI members did not and non-union members did not. The Complainant was in the designated community college sector and as she was not a member of the TUI, she did not receive the salary increment. 9. The matter is moot at the time of the hearing because the issued was resolved on 9 June 2017 when ASTI (and with that the few non-union teachers) reached an agreement with the Respondent that they will be bound by the terms of LRA and therefore the claim is a retrospective one and is limited to the period 11 July 2016 and 9 June 2017. 10. The retrospective claim is to cover losses as follows: a) Salary increments that were frozen between 11 July 2016 -June 2017 b) S&S allowance due on 1 September 206 c) The alleviation of the FEMPI reductions for higher earners d) €1000 increase paid to public servants under LRA not paid between April – June 2017 e) The reduction of pay reductions for higher earners not paid between April-June 2017 11. In the Complainant’s case this means a loss of €134.21 per fortnight. 12. In respect of the complaint that the failure to pay the above amount is in breach of the Payment of Wages Act 1991, this claim is denied on the following bases: i. Section 24 (6) of the Education Act 1998 states that a teacher’s remuneration “shall be determined from time to time by the Minister with the concurrence of the Minister for Public Expenditure and Reform.” ii. The LRA was a collective bargaining agreement that was agreed between the Respondent and the TUI iii. The Complainant’s salary is that which is properly payable to a teacher who is not a signatory to the LRA. It is not an agreement which can be entered into on an individual basis. iv. To allow teachers to individually opt in or opt out of collective agreements would undermine the practical enforceability of collective bargaining agreements. TO negotiate terms of contracts on an individual basis would place too high a burden on the resources of the Respondent. Furthermore, it would lead to the fragmentation of the voluntary and collective industrial relations bargaining framework. v. The potential parties to the LRA were the Respondent and the teachers’ unions. In 2015, only the TUI signed up to that agreement, therefore the ASTI and non-union affiliated teachers were not parties to the LRA. vi. If the Complainant had wished to sign up to the terms of LRA, she could have joined the TUI which were a party to the LRA. She could not as an individual teacher so join. vii. At the time that the Complainant left the TUI she would have been advised that this was the case. viii. The claim under the Payment of Wages Act 1991 is denied firstly because the Complainant’s wages were not deducted. Rather, she did not get the benefit of the terms of a collective bargaining agreement that she fell outside. ix. In the alternative, if there was a deduction then Circular 45/2016 which gave effect to the LRA is an instrument of statute and section 5 of the Payment of Wages Act 1991, permits a deduction to be made
Decision:
Section 41 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. This is a claim under the Payment of Wages Act 1991. Under section 5 of the 1991 Act deductions from wages are prevented unless that are (a) required by statute or any instrument made under statute (b) required by virtue of a term in the employee’s contract of employment (c) if the employee has given his prior consent in writing As (b) and (c) do not apply the question to be considered is whether the circular 45/2015 is an instrument made under statute which authorises the deduction to be made. Circular 45/2016 I find that Circular 45/2016 is an instrument of statute under section 5 of the Payment of Wages Act 1991. The circular is a direction issued by the Respondent to notify the school managerial authorities of payroll changes that apply on foot of Lansdowne Road Agreement. The circular states at paragraph 7. “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. The Financial Emergency Measures in the Public Interest Act 2013 and 2015 as set out in section 3 of their circular will apply to all other teachers employed in such schools.” For clarification purposes, section 2 of the circular sets out the sectors that are covered by LRA and that is determined by TUI membership. Section 3 refers to the fact that the application of LRA is entirely conditional upon adherence to its terms by the teachers to whom it is applied. The circular then proceeds to set out how TUI members may present their pay claims under the LRA. I am satisfied that circular 45/2016 is an instrument of statute in that it is a circular that complies with section 24 (6) of the Education Act 1998 which determines the remuneration to be paid to teachers. As the Complainant was in receipt of salary increments under the LRA for one year (between July 2015 and July 2016), I find that the discontinuance of these increments in July 2016 did constitute a deduction from her wages. However, as the deduction was made pursuant to an instrument of statute under section 5 of the Payment of Wages Act 1991, I find that this case is not well founded and must fail.
Dated: 31.01.2018
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words: