ADJUDICATION OFFICER RECOMMENDATION

 Adjudication Reference: ADJ-00008357

Parties:

 Complainant       Anonymised Parties       Respondent

A Herdsman                                          An Agricultural Research Institute  

Representatives

Gerard Kennedy SIPTU                         Employee Relations Manager

Complaint(s):

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-00011147-001 04/05/2017  

Date of Adjudication Hearing: 22/11/2017 Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure: In accordance with Section 13 of the Industrial Relations Acts 1969following 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).   This Adjudication is mirrored by Adjudication Adj- 00008356 on the same principles.  

Background:

This dispute concerns the issue of how the correct “Pensionable” rate of pay is arrived at for determining Pension amounts. Specifically, the issue is one of considering how regular overtime is to be treated in this process.

1:        Summary of Complainant’s Case:

The Complainant has worked 5 hours overtime at the weekend since 2003  The overtime was required to fodder and tend to the animals in the Institute’s herd every weekend. The overtime was necessary for the efficient operation of the Facility and the animal welfare of the herd at the weekend. The Complainant’s Union – SIPTU - pointed to a wide range of Rights Commissioner/Adjudication Officer decisions and Appeals of same where the inclusion of regular overtime for Pensions purposes was upheld by the Labour Court. The provisions of Circular SI 12 of 1991 in the Local Government service were referenced where it was stated that “Overtime payments may only reckon for superannuation purposes in exceptional circumstances and where specified conditions are fulfilled.” The conditions were identified in the Circular as essentially that the overtime was not optional, was part and parcel of the employee’s employment, was regular and rostered and could only be performed outside of normal hours. SIPTU contended that all these conditions were fulfilled in this case and the Overtime should be deemed Pensionable. The Union also contended that the principles in SI 12 of 1991 had, in effect become the norm in the Public Service and that this is reflected in the decisions of the Adjudication Services and the Labour Court. In discussions SIPTU pointed to LCR findings that were post S.I. No. 582/2014 -Rules for Pre -Existing Public Service Pension Scheme Members Regulations 2014. This indicated that the principles that guided the Labour Court in the overtime issue were not prohibited by the latter DPER 2014 Regulations.     

2:        Summary of Respondent’s Case:

The Respondent, a Public Service body, pointed to S.I. No. 582/2014 -Rules for Pre -Existing Public Service Pension Scheme Members Regulations 2014.   The following definition was quoted. Section 4 Definitions “allowances” means such allowances in the nature of pay, lawfully determined or lawfully approved by the relevant body, which are designated as pensionable by the relevant body with the approval of the Relevant Minister and the consent of the Minister, but excluding any sums paid in respect of overtime, commission, gratuity, special fees, travelling allowance, subsistence allowance and the like, the money equivalent of any emolument or benefit in kind (including motor car or other vehicle) or payment toward or in respect of such emoluments. On this basis, the Overtime as paid to the Complainant was not eligible for Pensions Purposes and had to be discounted. A letter, quoting this section, from the Pensions Officer of the body was produced in evidence. The Overtime in question was not treated as Pensionable and no superannuation’s contributions had ever been collected from the payments. In addition, the Respondents in oral evidence queried if the Special Conditions in the Local Government circular SI 12 of 1991 could apply to the Complainant – the overtime had originally been undertaken voluntarily and was not paid during periods of Annual Leave or other absences.  

3:        Findings and Conclusions:

This case revolves around what is the correct interpretation of a Pensionable Overtime Allowance. S.I. No. 582/2014 -Rules for Pre -Existing Public Service Pension Scheme Members Regulations 2014 quite properly in my view identified that Overtime generally is not Pensionable. However, the definition of what Overtime is has to be seen in context. Overtime which is by nature irregular and driven by business fluctuations, staff absences or other transient events is clearly not Pensionable. SI No 582/2014 by mentioning Overtime in the same sentence as commission, gratuity, special fees etc. is clearly taking this, what I would call “Transient” and non-pensionable view. However, by contrast Local Government Circular SI 12 of 1991 has a broader view and allows for Overtime that is, to use my words, “Non-transient” to be allowable for Pension purposes. This distinction would appear to be upheld by previous Adjudication decisions and the Labour Court Appeal findings. LCR 21262 (July 2016) in a case involving University College Dublin is relevant here. The Court found in the employee’s favour and allowed the disputed overtime as Pensionable. The arguments made by the College at the hearing of this case were ad idem with the employer argument in this case. The Employer Submission in the UCD case was given in evidence by SIPTU. The Court in LCR 21262 stated that “the overtime worked met the standard Civil and Public Service conditions for classification as pensionable salary”. Accordingly, as the overtime in this case was worked on a weekly basis for a period of some 14 years it has to be seen as effectively a part of salary and proper for reckoning as a Pensionable Payment. Accordingly, I recommend that the overtime in question - the weekly 5 weekend hours be deemed as Pensionable. Obviously, an actuarial calculation will now require to be done to determine the amount of additional pension accrued and equally importantly the arrears of Superannuation contributions due to the Pension Scheme.      

4:         Decision:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.  

Act           Complaint/Dispute Reference No.          Summary Recommendation

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00011147-001 Complainant’s case is well founded. The Overtime in question, being long established and regular, should be regarded as Pensionable.  

Dated:    8th January 2018 Workplace Relations Commission Adjudication Officer: Michael McEntee  

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