LCR22681

1.Reckonability of Regular Rostered Overtime for Pension Purposes


BACKGROUND:

2.This dispute could not be resolved at local level and was the subject of Conciliation conferences on 7March, 13May and 18August 2022 under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 1 September 2022 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 1 November 2022.

UNION’S ARGUMENTS:

3. 1. The Union seeks to rely on the criteria laid out in Circular EL 12/19, i.e. that the overtime - was part and parcel of the workers employment, was not optional, was work of a regular and recurring nature, and was not occasioned by staff shortages.

2. The Union seeks that the Worker's final pension figures are re-calculated and all outstanding monies, both weekly and as part of his gratuity are reimbursed to the Worker from the date of retirement.

EMPLOYER'S ARGUMENTS:

4. 1. The Employer position is that the overtime in question was optional and therefore not regular or rostered.

2. The Employer maintains that all overtime which can be accepted as pensionable within DPER regulations as covered by Section 6.3 (c) of the DPER Superannuation Handbook 2007 has been included.

RECOMMENDATION:

The dispute before the Court relates to SIPTU’s claim on behalf of a retired Park Ranger to have overtime worked by him reckoned for pensions purposes and that the failure of his employer to include this overtime is an error.

The Union submitted that the overtime carried out complies with the requirement set out in circular CL 12/91 in that the overtime was part and parcel of his work, was not optional and was work of a regular and recurring nature. The overtime was also work of a kind that could only be performed outside of and in addition to normal working. The Union are seeking to have 11 regular rostered overtime shifts of 6.5 hours at double time which the Worker worked included. The Worker in this case was based in the Phoenix Park which annually runs hundreds of events ranging from international events to local community events. The Union noted that the Employer was raising an issue as to whether CL 12 /91 applied to this cohort of workers as it emanated from local government, in previous discussions they had indicated that they were considering whether or not the Workers overtime met the requirements of that circular.

The Employer accepts that the Worker worked overtime and provided details of overtime worked by him in 2015, 2016, 2017, and 2018. The Employer stated that the overtime was not regular rostered overtime and that it was voluntary. If the Worker did not do the overtime some one else would do it and there was no penalisation for not doing it. The Employer state that in 2015 there were 11 instances of overtime, 10 in 2016, 7 in 2017 and 22 in 2018. This overtime was neither regular nor rostered and therefore cannot be considered pensionable. In coming to that decision, the Employer stated that they were relying on Section 6 (3) of the Establish Civil Servant Staff Handbook which states

• “ (c ) in certain exceptional cases, specifically approved by the Department of Finance, payments for compulsory, regular and rostered extra attendance which forms an inherent part of the conditions of service for certain posts and where such attendance is considered to be the most effective and economical means of carrying out the work involved”;

Discussion

One of the difficulties in this case was the fact that the Union were relying on circular CL/12/91 which is a Department of Environment circular which issued to local authorities. The Employer was relying on an abstract in a staff handbook for established Civil Servants, a book that the Worker was probably never provided with as he is not an Established Civil Servant. The Worker in this case does not fall into either of those categories as he is classified as an industrial civil servant.

As a bare minimum his Employer should have a clear statement available to all staff which sets out the bases on which overtime can be considered pensionable and the relevant provisions which govern that.

The Court based on the information before it notes that this Worker’s overtime does not meet the classification in either circular CL/12/91 or set out in the extract from the staff handbook and therefore cannot recommend concession of his claim.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
15 November 2022	Deputy Chairman