FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : DUBLIN AND DUN LAOGHAIRE EDUCATION AND TRAINING BOARD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - RONAN FLYNN DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No: ADJ-00007183.
BACKGROUND:
2. This is an appeal of an Adjudication Officer's Decision No: ADJ-00007183 made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 3 July 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by the Dublin Dun Laoghaire Education and Training Board against an Adjudication Officer’s Decision ADJ-00007183 given under the Payment of Wages Act 1991 (the Act) in a claim by Mr Ronan Flynn that he suffered an unlawful deduction from his wages in consequence of the non-application to him of Department of Education and Skills Circular 0045/2016 “Public Service Stability Agreement 2013 – 2018 (Haddington Road/Lansdowne Road Agreement) and the Financial Emergency Measures in the Public Interest Acts 2013 and 2015”(hereinafter referred to as "the Circular"). The Adjudication Officer found in favour of Mr Flynn’s claim.
In this Determination the parties are referred to as they were at first instance. Hence the Dublin Dun Laoghaire Education and Training Board is referred to as ‘the Respondent’ and Mr Ronan Flynn as ‘the Complainant’.
Background
The Complainant has been employed by the Respondent in a Designated Community College as a Teacher since 28thAugust 2015. He is not a member of either the TUI or the ASTI trade unions. In 2015 the Lansdowne Road Agreement came into effect. All of the trade unions in the education and training sector, with the exception of ASTI, accepted it. On 30thJune 2016 ASTI issued a directive to its members to cease fulfilling the “Croke Park” hours with effect from 11thJuly 2016. The “Croke Park” hours were 33 additional hours work per annum which had been agreed by teachers as part of the Croke Park Agreement and had continued under the Haddington Road/Lansdowne Road Agreement. The rejection by ASTI of the Lansdowne Road Agreement meant that the financial and other benefits of that Agreement no longer applied to members of ASTI.
On 14thJuly 2016 Circular 0045/2016 was issued to all managerial authorities of recognised secondary, community and comprehensive schools and to the Chief Executive of Education and Training Boards (including the Respondent) advising them on the changes to the salaries of teachers and other measures as a result of thePublic Service Stability Agreement 2013 – 2018 (Haddington Road/Lansdowne Road Agreement) and FEMPI. This Circular provided that Designated Community Colleges are regarded as dual representation colleges, i.e. represented by both TUI and ASTI. However, it continued to state at Clause 3: -
“While the above is not definitive and certain issues of dual representation require further consideration, it provides an initial basis for the implementation of the Lansdowne Road Agreement. It is stressed however, that the application of the Lansdowne Road Agreement is entirely conditional upon adherence to its terms by the teachers to whom it is applied.”
Clause 7 of the Circular provides:-
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 this Circular will apply to all other teachers employed in such schools.
- TUI members who are employed in Designated Community Colleges:
TUI members who are employed in Designated Community Colleges should complete the form at Appendix 1 and submit the form by post to the Payroll section of their employer Education and Training Board by 5pm on Tuesday 13 September 2016, to enable the payroll adjustments under the Agreement to be implemented in respect of their salary. Teachers should retain a copy of the completed and signed form.”
As the Complainant was not a member of the TUI the terms of the Lansdowne Road Agreement (the Agreement) were not applied to him. The Complainant objected to the position taken by the Respondent in excluding him from the application of the Agreement and submitted his claim under the Act to the Workplace Relations Commission on 15th February 2017.
On 10th June 2017 ASTI voted at a special convention to suspend all industrial action relating to the Agreement and the Junior Cycle, therefore the terms of the Agreement became applicable from that date. Circular 0048/2017 outlined the terms of the Agreement to apply to teachers employed in Designated Community Colleges, Community ad Comprehensive Schools and Voluntary Secondary Schools who were not TUI members. It provided that the terms would apply with effect from 10th June 2017.
The Complainant complained that certain deductions were made from his salary as he was not properly paid the following payments: -
i. first moiety of the Supervision & Substitution allowance €796 which was due on 1st September 2016;
ii.an increment on the teacher’s scale to bring him to €31,903 from 1stSeptember 2016, and
iii.an additional increment to bring his salary to €32,806 from 1stJanuary 2017.
Summary of the Complainant’s Case
The Complainant told the Court that he had been a member of TUI but had lapsed his membership. He said that he had never been a member of ASTI and had no affiliation whatsoever with it. He said that while most teachers in the Respondent school were TUI members there were no ASTI members in the school.
The Complainant stated that he had complied with all aspects of the requirements under the Agreement. He said that he worked the same Croke Park hours, did the supervision and substitution hours and complied with the Junior cycle reform (written confirmation to that effect signed by the Principal and vice-Principal of the School was furnished to the Court), however, he did not have the benefits of the Agreement applied to him. He claimed that he was treated as though he was a member of ASTI who had rejected the Agreement as his salary was reduced and deductions were made and he was denied pay restorations that were available under the Agreement.
Summary of the Respondent’s Position
Ms Niamh Ní Cheallaigh, Ibec, on behalf of the Respondent, denied the Complainant’s allegation that the Respondent had breached the Act. She submitted that it had complied with its statutory functions. Ms Ni Cheallaigh stated that the Respondent is obliged under section 24 of the Education Act 1998 to provide terms and conditions of employment, remuneration and superannuation for teachers as determined by the Minister for Education and Skills.
Section 24 of the Education Act states: -
- (3) The terms and conditions of employment of the teachers and other staff of a recognised school, appointed by the board and who are, or who are to be, 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.
(6) Where all or part of the remuneration or superannuation, or both, of the Principal, a teacher or another member of staff of a recognised school is paid or is to be paid out of monies provided by the Oireachtas, 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.
Ms Ni Cheallaigh stated that the application of the Agreement to teachers in dual-union schools was determined by the Department/Minister. The Respondent’s position is that the Complainant was at all times paid the salary which was properly payable to him as a teacher who was not covered by the Agreement, in accordance with section 5(1) of the Act.
Ms Ni Cheallaigh stated that the usual position in the public service 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 the grade whether union members or not.
However, she stated that as set out in Circular 0045/2016, in dual-union schools, like the Respondent school, the Agreement applied to TUI members as TUI had accepted the Agreement. Accordingly, the Agreement did not apply to other teachers in the school, whether they were ASTI members or not a member of either union.
The Applicable Law
The Act at section 5 provides in relevant part as follows
- 5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
“Where—- (a)the total amount of any 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
(b) 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,
- (a)the total amount of any 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
Subsection (6)(a) of section 5 of the Act above provides, in effect, that where the total amount of salary properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction. Consequently, the Court must turn to a consideration of the amount that was properly payable to the Complainant in the six-month period covered by the claim, i.e. from 16thAugust 2016 until 15thFebruary 2017.
Amount Properly Payable
The Complainant is claiming that the amount properly payable to him at the material time is to be assessed by reference to the terms of the Lansdowne Road Agreement. Accordingly, this Court must decide whether the claimed monies were “properly payable” to the Complainant by the Respondent.
Findings of the Court
Where a deduction is made in an employee’s salary it is incumbent on the employer making the deduction to identify the statutory or contractual provision under which that deduction is authorised. The Respondent referred the Court to the provision of Circular 0045/2016 upon which it relies in claiming that the impugned deduction was lawful. The Court is satisfied that Circular 0045/2016 is an instrument made by the Minister for Education and Skills under statute (Education Act 1998) and accordingly comes within the parameters of section 5(1)(a) of the Act. This Circular provides that the terms of the Lansdowne Road Agreement will apply to teachers employedinter aliain Designated Community Colleges who are TUI members and that the terms of the FEMPI will apply to all other teachers employed in such schools.
The Complainant accepted that he was not a member of the TUI. He accepted that he did not complete the form required to enable payroll adjustments under the Agreement to be implemented in respect of their salary as he was not a member of the TUI.
The Court is satisfied that the Agreement is a collective agreement agreed between the Government and the Public Services Committee of ICTU and its terms apply to members of affiliate unions. The Complainant was not a member of such a union and therefore was a “stranger” to the collective agreement, in such circumstances therefore the terms of the agreement were not properly payable to him.
The Court is satisfied that the amount “properly payable” to a teacher in salary is the amount prescribed by the Minister for Education and Skills with the consent of the Minister for Public Expenditure and Reform.
The Court therefore, taking account of the Act at Section 5(1)(a), finds that no unlawful deduction from the Complainant’s salary has taken place.
Determination
The Court upholds the Respondent’s appeal.
The Court finds that no unlawful deduction from the Complainant’s salary has taken place and for the reasons stated above the decision of the Adjudication Officer is set aside.
The Court so Determines.
Rider
A representative of the Department of Education and Skills who was present at the hearing of the appeal before the Court, informed the Court that the Circular was issued in haste, four days following the rejection of the Agreement by ASTI. She said that on that basis the provision set out in Clause 3 recognised that there were significant difficulties with dual representation which would “require further clarification” which inferred that these issues needed to be revisited.
The Department representative referred to the anomaly highlighted in this case, whereby the Complainant who was neither a member of TUI nor ASTI, did not benefit from the terms of the Agreement despite having fully complied with the conditions laid down in that agreement with regard to supervision and substitution hours and compliance with Junior Cycle reforms etc. She also informed the Court that non-TUI members in a TUI only school did benefit from the terms of the Agreement. The Court notes that the Circular contains no appeal process despite its acknowledgement of possible difficulties with its terms.
The Department Representative told the Court that going forward this anomaly has been addressed in the Public Sector Pay and Pensions Act, 2017, however, the legislation has no retrospective effect. While it is acknowledged that the difficulties which occurred in this case may be avoided for the future, this does not address the inequity which occurred in this case, where the Complainant fully complied with the terms of the Agreement yet is prevented from benefitting from that Agreement due to his non-affiliation to TUI.
Signed on behalf of the Labour Court
Caroline Jenkinson
10 July 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.