ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00015755

Parties:

Complaint(s):

Date of Adjudication Hearing: 30/11/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1946 – 2015 and Section 16 of the Protection of Employees (Part-Time) Work Act 2001 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 is an employee of a Youth Service. The Complainant is employed as ‘Youthreach Resource Workers’ to deliver tuition and undertake administrative duties on Youthreach Programmes. The grade of Resource Worker is a grade that had been nationally agreed for deployment in Youthreach Programmes (Second Chance Education for early school leavers) and the contract of employment is appended to Department of Education and Skills [DES] Circular Letter 12/03.

The Complainant is seeking adjudication under the following:

• Section 13 of the Industrial Relations Act, 1969 claiming that she has not been given access to the pension scheme available to other employees and she contends she has an entitlement to access the scheme as per other employees.
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• Section 16 of the Protection of Employees (Part-Time) Work Act 2001 claiming that she has not been given access to the pension scheme available to a comparable whole-time employee. The Complainant works more than 20% of the hours of a comparable whole-time employee and contends that she is entitled to access the scheme.

Summary of Complainant’s Case:

CA-00020450

This Complainant commenced employment with the Respondent on the 8 April 2008 and works as a Youthreach Resource Person. The Complainant works 29 hours a week. The Complainant is seeking adjudication by the WRC under Section 16 of the Protection of Employees (Part-Time) Work Act 2001 and Section 13 of the Industrial Relations Act, 1969.

Details of the Claims:

Under the terms of the Service Level Agreement, and previous agreements related to the provision of a grant, the staff in the Respondents company on the Youthreach Programme must be paid at rates approved by the Department of Education and Skills and notified by the Education and Training Board, as appropriate, to include provisions for superannuation entitlements.

The Youthreach Pension Scheme is a defined pension scheme. The scheme is based on the provisions of the “Local Government Superannuation Scheme.” The Respondent set up the scheme in April 2000 in order to be in compliance with the Implementation of Youthreach Pay adjudication as advised to the Respondent by the Local Education Service on 11 May 1999.

Under the Pension Adjudication it was determined that: “Full time instruction staff in Youthreach will be pensionable under the conditions set out in the Local Government Superannuation Scheme. This is a co-ordinated pension scheme where full PRSI continues to be payable.”

The scheme is technically a private scheme with the Respondent as the employer, in the set-up of the scheme, the Respondent has previously stated in correspondence to members of the scheme, it was always intended that the scheme would mirror a public service scheme with the benefits defined to match those of the Local Government Superannuation Scheme. Furthermore, the funding of the “Employers portion” of the scheme is paid by the Respondent as the employer.

The Protection of Employees (Part-Time) Work Act was enacted in 2001 and the state implemented this legislation by allowing part-time staff working in Youthreach access to the relevant Public Service Pension Scheme. This was achieved through the issue of Circular Letter 04/01 Admission of Tutors in Youthreach Centres of the Education Sector Superannuation Scheme. The Complainant state the Respondent failed to implement this legislation and has been in breach of the legislation in relation to part-time staff for some time.

The latest grant agreement came into effect on the 24 March 2016 and since this point no new members have been admitted to the scheme.

In summary the decision to exclude part time members of staff from the scheme is in breach of one of more of a number of provisions in every case. The restriction is against the rules of the pension scheme, is inconsistent with the Youthreach Pay Adjudication, 1999 under which the scheme was set up in the first instance, is in breach of the Protection of Employees (Part-Time) Work Act, 2001 and is in breach of the Protection of Employees (Fixed-Term) Work Act, 2003.

Industrial Relations Act, 1969

The Complainant is seeking that she be admitted to the Respondents Defined Benefit Pension Scheme retrospectively, that she be given the opportunity to make contributions, at the same rate as those that have been made by current members of the scheme, to support a benefit under the scheme equal to that which would have accrued for their service from appointment to the Youthreach programme to date and that the employer make the required employers contribution for such staff members. The Complainants representative expects the Respondent would undertake the appropriate calculations for her and supply them to the Union for consideration by their financial advisors in advance of paying the relevant amounts into the scheme. The Union is additionally seeking compensation for the infraction of the complainant’s statutory right to when they requests to join the scheme which ensures the same treatment to full time employees.

Protection of Employees (Part –Time Work) Act, 2001

The Union holds the position that the Complainant had an entitlement under Section 9 of the Protection of Employees (Part –Time Work) Act, 2001 to be treated no less favourably than a comparable permanent employee. The Union contend that any given Youthreach Resource Person is an appropriate permanent comparator for the relevant claims. Nonetheless, the Union further contend that Mr. A is an example of a comparable permanent employee as per Section 7(2) and (3) of the Protection of Employees (Part – Time Work) Act, 2001. The Comparator is employed since 29 June 1998 as a Youthreach Resource Worker and works 37 hours a week. The Complainant and Mr. A (comparator) are and have been employed by the Respondent during the reference period for this complaint, and thus, satisfy the requirement of Section 7(2) (a) of the Act. The Union contend that the fact that the Complainant is contracted identically to Mr. A satisfies the requirement of Section 7(3) (a) of the Act as it unambiguous, and indeed contractually explicit, that the Complainant is employed to perform the same work and are interchangeable – indeed this interchangeability is a matter of fact and is overtly documented in both contract and practise.

Summary of Respondent’s Case:

The Respondent, as per their submission of documentary evidence state that they are not the employer. The Respondent receive a grant from the Department of Education and Skills. The Complainant is paid via this grant. Minutes of a meeting held on 7 March 2018 between the Respondent and the Complainants Union state that CFO at the time stated that the pension issue has been consistently brought forward to the ETB by the Respondent, with the Respondent only signing the SLA having received a commitment from the CEO of the relevant ETB that he would address the matter with DES.

It was confirmed via evidence presented that the Respondent and the ETB entered into a grant agreement. Pursuant to this agreement the ETB are responsible for monitoring, reporting, inspecting and payment of the funding and the Respondent is responsible for managing each programme and ensuring that service targets are met. Under the Agreement the ETB must include the employer’s contribution to the pension in the grant to the Respondent. The ETB has sought to restrict access to the employee pension scheme by providing “this provision in relation to the pension costs relates to full time members of the Youthreach staff employed by the Grantee currently in the pension scheme.”

The agreement implicitly restricts access to the Scheme, not only for part-time employees, but also full-time employees who were not already members of the Scheme on 24 March 2016. No new member, full time or part time has been admitted to the Scheme since the commencement of the Grant Agreement.

The Respondent has raised this issue with this restriction during negotiations on the grant agreement and specifically on the basis that this restriction is against the rule of the pension scheme, is against the Youthreach Pay Adjudication 1999, under which the pension scheme was set up in the first place and would prevent opening the scheme to part time workers thus leading the Respondent to be in breach of the Part Time Workers Act.

The CEO of the ETB in his cover letter issuing the Grant Agreement noted as follows:

“Pension Provisions – with regard to the request from [the Respondent] that the pension provision be extended to include part-time staff employed on the Youthreach programme, I have referred the matter to the Department of Education and Skills for consideration as the costs of the employer’s contribution towards the pension must be included in the Youthreach pay allocation by the Department.

On 23 November 2016 one full-time and two part-time staff wrote to the Financial Office of the Respondents Company and formally expressed an interest in joining the scheme. This was immediately communicated by the Respondent to the ETB.

A meeting on 31 August 2017 was the first communication that the ETB raised this issue with the DES.

On 13 September 2017 the ETB sough details of the Scheme and its participants from the Respondent. This information was provided to the ETB on 28 September 2017.

On 15 September 2017 the ETB confirmed that the information was submitted to the DES and that the ETB had not received any further correspondence from the DES.

On 12 December 2017 the Respondent again wrote to the ETB requesting the “you would do everything possible to bring this matters to a satisfactory resolution as quickly as possible”.

Despite continuous correspondence and requests from the Respondent throughout 2018, the ETB and DES have refused to resolve the matter.

The Respondent submits that they are not the correct Respondent in this matter. The Respondent noted that the correct Respondent and employer in this matter is the ETB and DES. The Respondent believes that pursuant to the decision of The Minister for Education and Skills and Anne Boyle and the Labour Court and the Management Committee of Hillside Part Pre-School [2017] IECA39 Youthreach staff are paid out of public monies and the Minister for Education and Skills or Kerry ETB sets the rules about how and when such staff are to be paid therefore the DES/ETB should be considered to be the employer of such staff for the purposes of pay related employment legislation.

Findings and Conclusions:

Protection of Employees (Part –Time Work) Act, 2001

Section 9 of the Protection of Employees (Part –Time Work) Act, 2001 states that part time employees are to be treated no less favourably than a comparable full time employee unless the treatment can be justified on objective grounds.

9.—(1) Subject to subsection (2) and (4) and section 11 (2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11 (2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8 , to a part-time employee.

(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.

A comparable permanent employee as per Section 7(2) and (3) of the Protection of Employees (Part – Time Work) Act, 2001 has been named by the Complainants representative. Parties agreed during the Hearing that Mr. A as comparator was a fair comparator that met the requirements of the Act.

(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—

(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

(3) The following are the conditions mentioned in subsection (2)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

In line with Section 16 (1) and (2) the Act states the adjudicator must declare if this

16.—(1) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee's employer has contravened section 9 or 15 in relation to the employee and, if the employee or such a trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

(2) A decision of a rights commissioner under subsection (1) shall do one or more of the following—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment,

Industrial Relations Act, 1969

Section 13 (3) (a) and (b) of the Industrial Relations Act, 1969 states:

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) If the Court has made a recommendation in relation to the dispute, or

(ii) If a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

The Complainant did not use the internal grievance procedure to resolve the concerns. However their Union representation have consulted and addressed their collective grievance with the employer who suggested referral to the WRC as resolution could not be achieved.

Contract

Having reviewed the documentary evidence provided the contract of employment does not support that the Respondent is not the employer. Clearly stated on the front page of each contract is the following “hereinafter referred to as “the employer/the company.” The parties to the contract are the individual employees and the Respondent. The contracts of indefinite duration indicate the individual payments per role. It is not stated that the payments are funded by grant provided from the ETB. A PRSA scheme is available within the contract of employment to contribute towards.  Funding is not referred to in the contracts of indefinite duration.

Grant Agreement

The Grant agreement between the Respondent and the relevant ETB, dated 24 March 2016 covered 1 April 2016 to 31 December 2018, provides funding for 100 Youthreach positions in agreed locations.

The Grant Agreement references the use of the grant in Section 3 page 11.

3.5 “Any liabilities arising at the end of the Project including any redundancy liabilities for Personnel must be managed and paid for by the Grantee using the Grant or other resources of the Grantee. There will be no additional funding available from The ETB for this or any other purpose”

The Grant Agreement references ‘personnel’ in Section 9 page 44.  

9.1 “The Grantee and the Personnel are not and shall not act as employee of the ETB for any purpose, including under the meaning or application of any Legal Requirements including any laws or regulations which would or might impute any obligation or liability to the ETB by reason of any employment relationship”

9.2 “The Grantee acknowledges and agreed that it is not intended that the entry into, assignment, novation, suspension, expiration or termination (for whatever reason) of this Agreement will constitute a relevant transfer for the purposes of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

Implementation of Youthreach Pay Adjudication, 30 April 1999

This letter states the following, page 2.

Pension

Full-time instruction staff in Youthreach will be pensionable under the conditions set out in the Local Government Superannuation Scheme. This is a co-ordinated pension scheme where full PRSI continues to be payable.

A separate document is attached summarising the benefits and contributions payable under the scheme and should be distributed to Youthreach staff in full-time service. Participation in the scheme is compulsory and the deductions for this should commence as soon as possible.

he Department is also in discussion with the TUI regarding the application of pensions to part-time staff in Youthreach.

A letter from the DES, 26 January 2010 to the Respondent states the following: “I have been directed also to inform you that the cost of the employer’s contribution towards pension will be included by County VEC in grant to the (Respondent). This pension scheme is a matter for the (Respondent). The VEC should not be named as employer and should not undertake long term liability under the pension scheme. The Department will cover the cost for as long as the contract for delivery of the Youthreach programme between the VEC and the Respondent is in place.”

A letter from the CFO at the time to the Director of the ETB dated 12 December 2017 in relation to the co-ordinators salary indicates that the DES has responsibility over the same. It states: “I understand from previous correspondance that representatives have been made to DES in relation to the salary of the (role). You clarified that Kerry ETB had received a negative response from the Department and undertook to pass on a copy of that correspondance to myself – I am awaiting the same”.

Comparator

The comparator requirement of the Act has been met.

Employer

The next consideration is who is the employer of the Complainant is. The Complainants representative does not accept that the Respondent is not the employer. It is the employer’s responsibility to offer the scheme to all and this wasn’t done. The Respondent noted that they are not the employer. However the Respondent does accept that it was their responsibility to offer this pension if they were the employer.

The Supreme Court decision of the Minister for Education and Skills v Boyle [2018] IESC 52, 1 November 2018 overturned The Labour Court, High Court and the Court of Appeal decisions that Boyle was the employee of the Minister. The court noted that the case had the potential to affect many different kinds of arrangements where the payment of salaries was undertaken by a third party. The court directly referred to charities and NGOs and employees in the health sector, many of whose salaries are in effect paid by the State. Clarke C.J. stated that most third party funders would be likely to impose relatively detailed conditions as to the financial terms on which persons whose salaries were paid could be employed and that third party funders were unlikely to give employers a “blank cheque” in that regard. The court concluded that not all of the teacher's terms and conditions were determined by the Minister. In particular, the court was satisfied that the fact that her position did not carry any pension entitlements was as a result of the school's lack of resources rather than any ministerial policy. The court stated that it was necessary to have particular regard to its previous decision on O'Keefe v Hickey ([2008] IESC 72), where the court held that the State was not vicariously liable for acts of child abuse by a person working in a school because the contract of the wrongdoer was with the board of management of the school rather than with the Minister. The court stated that, while the wording of a particular statutory regime could lead to a different conclusion in an individual case, O'Keefe was “clear and recent authority for the proposition that, in the ordinary way, it is the school management rather than the Minister who is taken to be the other party to a teacher's contract of employment.”

The court rejected the argument that Boyle had two employers, the board of management of the school concerned and the Minister, stating that the possibility of being employed by two employers in respect of the same work, while theoretically possible, was contrary to the “axiom that a man cannot serve two masters”, which, the court noted, “reflects much of the law as well as common sense”.

The court also stated that a contract of service involves a reciprocal arrangement between employer and employee under which the employee agrees to do work under the legitimate direction of the employer. The court noted that on the facts in issue, the Minister had no entitlement to direct the type of work done by the applicant.

For these reasons, the court allowed the appeal, concluding that the applicant was employed by the board of management of the school rather than by the Minister. The court stated that any alternative conclusion “would involve an extension of the law of contract beyond any known boundaries.”

The term “employer” is defined by Protection of Employees (Part –Time Work) Act, 2001 Section 1

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;

The relevant ETB in this case and the Respondent entered into a Grant Agreement. The Respondent is responsible for managing each programme and ensuring service targets are met. The relevant ETB is responsible for monitoring, reporting, inspecting and payment of funding. The funding is provided for by the Department of Education and Skills.

The statutory definitions of the terms of “employer” and “employee” already referred to, before considering the applicable law as found  by both the High Court and Supreme Court in a variety of decisions; Tobin v Cashell (High Court, Kearns J, 21 March 2000), Crowley v. Ireland [1980] I.R.102, O’Keeffe v Hickey [2008] IESC 72, [2009] 2 I.R. 302 and Catholic University School v Dooley [2010] IEHC 496, [2011] 4 I.R. 517.

The Adjudicator finds that while the Respondent is responsible for managing each programme and ensuring that service targets are met the pay and conditions of employment are determined by the Minister out of public funds and this is paid via the ETB. For clarity the purpose of ordinary day-to-day control the Complainant have their contractual relations with the Respondent.

It is the Adjudicators finding that to preclude part time employees is not legally compliant with the Act. Therefore the Complainant should receive the same pension entitlements on a pro-rate basis as their comparable full time colleagues.

Since 2016 neither full time nor part time staff are being permitted to join the scheme. However, from the evidence presented the complainant was in employment prior to this. Notwithstanding this only part time employees were not permitted to join the scheme prior to this. To conclude the same admission terms should apply to full time and part time employees.

Decision:

In accordance with Section 16 of the Protection of Employees (Part-Time) Work Act 2001:

1. I find that the case is well founded. I find that the Respondent is the employer.
2.  
3. I require the employer to comply with the relevant provision and provide access to the employee comparable to her full time equivalent counterparts.
4.  
5. I require the employer to pay the employee €2,500 as compensation as is just and equitable having regard to all the circumstances.In accordance with Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015  I recommend that the Complainant be treated fairly in line with her comparable full time colleagues and receive the same comparable (pro-rata) entitlement in relation to the pension scheme. I recommend that the Complainant be admitted to the Respondents Defined Benefit Pension Scheme retrospectively from the date they requested to join, that the complainant be given the opportunity to make contributions, at the same rate as those that have been made by current members of the scheme, to support a benefit under the scheme equal to that which would have accrued for her service from appointment to the Youthreach programme to date and that the employer make the required employers contribution for such staff members.
6.  
7.  

Dated:   05/06/19

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Key Words: