Employee

Employer

Anonymised Parties

A Coxwain

A Port Management Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00034585-001

12th February 2020

The Employee claimed there was an agreed a Defined Benefit Pension Scheme with his  employer in 1992 that was never implemented. The Employee alleges there is a substantial ongoing difference between the pension provided by his current scheme and the DB scheme.

This dispute is highly complicated as its outcome depends on the interpretation of a large number of legal documents and correspondence. The dispute is also a long running dispute over many decades and the Adjudicator has focused on the key issues involved in my Findings. The Employees assertion that he is entitled to be a member of the Defined Benefit scheme must be a reasonable or definite certainty. The issue was the subject of a number of detailed submissions and Hearings into the dispute. Substantial post hearing correspondence took place.  The substantial submissions of both Parties have been greatly summarised to provide some brevity to the positions.

The dispute is in relation to the Employees claim against his employer that he is entitled to enter the Defined Benefit Scheme since 1992 (at least) and this was not implemented.  The employee commenced employment as a part time employee in 1983 and became a fulltime employee in 1987. The employee is employed as a Coxswain (Pilot boat Man).

The Employee alleged he was entitled to membership of the Scheme arising from correspondence between SIPTU and the Employer over a number of years.

The Employee claimed his job tile was covered by the Act for inclusion in the Scheme or the flexibility was there to include his job title.

The Employee claimed there was a collective agreement in place which agreed to his inclusion in the DB scheme.

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The Employee claimed that by joining a DC Scheme provided by the Employer he was not precluded from joining the DB scheme or asserting his right to do so.

The Employee claimed that arising from the merger of two Port companies he had received less “beneficial conditions of service” in his superannuation which was in contradiction to the Acts setting up the Merger.

The Employee claimed that there was a commitment from the CEO tin writing to introduce a DB scheme for him and his work colleagues with a similar job title.

The Employee claimed that the Employer failed in its duty to submit a DB scheme for him to the relevant Departments.

The Employee claimed that approval had been received for the introduction of a scheme by the relevant departments.

The Employee claimed that the Employer had sufficient funds to support the scheme financially.

The Employee claimed he was at a significant loss of annual pension arising out of the failure of the Employer to introduce the DB scheme for him.

The Employee has maintained his right to join the DB scheme since the amalgamation of companies took place and before that..

The Employee claimed the Employer failed to follow/implement the recommendation of a Mediation into the issue.

The Employee claimed he is entitled to membership of the DB scheme by various statues or Acts.

The Employee claimed that a former Captain acted ultra vires by not implementing the DB scheme.

The Employee claimed that the collective agreement was an implied term of his employment.

The Employee claimed that the introduction of the DC scheme by the Employer was against the law.

In 1996 the Harbour Act set up the commercial state port companies merging various entities. The Harbour Act is very specific regarding the treatment of those transferring from the various Harbour Commissioners, Local Port and Pilotage Authorities. Section 39 of the Act states:-

“39.-(1) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned or an agreement negotiated with the person concerned, a person transferred to a company under section 38 shall not while in the service of the company, be brought to less beneficial conditions of service or of remuneration than the conditions of service or of renumeration to which he or she was subject immediately before the relevant vesting day”.

The Defined Benefit Pension Scheme as set out in 1992, agreed in 1993 and confirmed in 1994 is a condition of service.

Section 40, Part 4 of the 1996 Act states:-

“40.-(4) Superannuation benefits granted under schemes under this section to persons who, immediately before the relevant vesting day, were members of the staff of a Harbour Authority or the Department of the Marine, as the case may be, and the terms and conditions relating to these benefits shall not be less favourable to those person than those to which they were entitled immediately before that day. “ This clearly cover the offer and acceptance of the Defined Benefit Scheme in 1992/1993 as confirmed by the Department in 1994.

 The establishment of a defined benefit scheme was discussed in 1992. This was offered and accepted in 1993.

The Department of Marine confirmed the Agreement in 1994.

The right to the Defined Benefit Scheme is protected by the 1996 Harbours Act.

The company again offered a Defined Benefit Scheme in 1993.

Arising out of a collective agreement in 1993 it is an implied term of the employee's contract of employment that he receive a DB Pension including a 3/80 per year of service gratuity as referenced by the Captain in his letter of 24th March, 1993 "With regard to the pension scheme, I  would confirm the following: a) There is no provision for added years as with some schemes b) There is provision for Lump Sum payment based on 3/80ths per year served subject to a maximum of 120/80ths”.

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By not only denying the Employee the opportunity of having the agreed pension scheme approved, the employer also failed to offer him the opportunity to join the existing scheme as set out in the 1996 Harbours Act Section 41.— (1) (b)  

(b) A person who—

immediately before the relevant vesting day was a member of the staff of the former harbour authority of the harbour of a company (being a company in relation to which a scheme referred to in subparagraph (i) of paragraph (a) is continued in force under that paragraph) but was not participating in such a scheme, or

becomes a member of the staff of such a company after the relevant vesting day,

may, after the relevant vesting day, participate in such a scheme in accordance with the provisions thereof.

For the avoidance of doubt the Act goes so far as to clarify that an existing scheme is now a

staff scheme and therefore open to all staff members. 

1996 Harbours Act Section 41.— (1) (c) 

“(c) For the purposes of this subsection—

(i) references in a scheme continued in force under paragraph (a) to the harbour authority which made the scheme shall be construed as references to the company in relation to which the scheme is so continued in force and the provisions of the scheme shall otherwise be construed so as to have effect in relation to that company and the members of its staff and other persons concerned”.

A secondary consequence of the employer’s unilateral withdrawal of the scheme but no less damaging is in denying the Employee recognition of his prior service.

1996 Harbours Act Section 41.— (4) (a) 

“(4) (a) In relation to a scheme or schemes made by a company under section 40 (1), previous service by a member of the staff of the company in the employment of the former harbour authority of the company's harbour or the Department of the Marine, as the case may be, shall be reckonable as service with the company for the purposes of the scheme or schemes. “

After the amalgamation of the two ports the new CEO in 2001 issued letters of Guarantee to each employee which state “Let us be absolutely clear, all staff from both former companies have transferred to X Company with the protections envisaged by the Harbours Act fully respected”.

The 1996 Harbours Act grants terms and conditions of employment implied by statue in the areas of prior service and superannuation. The employer has not met their obligations on these issues or honoured their Letter of Guarantee.

The employer had two schemes submitted to the Department of Marine for approval.

The employer has failed to provide any evidence or proof that the Captain acted with the consent or approval of the new CEO, management team or board in withdrawing the Pilots scheme.

The claim is also based upon the employer’s breach of the 1993 Collective Agreement between SIPTU and the then employer to initiate an approved Defined Benefit Pension Scheme and their subsequent refusal to allow the Employee to join the existing defined benefit scheme. The consequences of the employer’s refusal to allow the Employee access the scheme are a denial of his thirty-five years of service and a devastating effect on his financial security upon retirement. 

The letter of acceptance from SIPTU dated 31/03/93 and correspondence from both the employer and the Department of Marine stating that an agreement had been reached to initiate a defined benefit pension scheme (Model Scheme) which were submitted with the original claims in 2007 and 2020 and which the Employees submitted as Item as proof of the collective agreement between the employer and SIPTU to initiate a defined benefit pension scheme. 

As a result of the employer withholding the fact that they had withdrawn the scheme and in the belief that the scheme was awaiting final approval by the Departments of Marine and Finance, the Employee could not exercise his statutory given right to request entry into one of the three existing defined benefit schemes the employer was operating when he transferred into the new port company, under the 1996 Harbours Act.

The 2000 DC scheme was an unapproved scheme, it contravened section 40 – (7) of the 1996 Harbours Act. “(7) No superannuation benefit shall be granted by a company nor shall any other arrangements be entered into by the company for the provision of such a benefit to or in respect of a member of the staff of the company otherwise than in accordance with a scheme under this section, a scheme referred to in subsection (1) of section 41 or pursuant to the company's obligations under subsections (6) and (7) of that section”.

Only approved schemes or an existing scheme may be entered into by a member of staff of the new port companies. And these approved schemes must recognize prior service for superannuation purposes.

“1996 Harbours Act Section 41.— (4) (a) 

(4) (a) In relation to a scheme or schemes made by a company under section 40 (1), previous service by a member of the staff of the company in the employment of the former harbour authority of the company's harbour or the Department of the Marine, as the case may be, shall be reckonable as service with the company for the purposes of the scheme or schemes. “

The 2000 DC scheme does not recognize the Employees prior service for calculating my superannuation benefit.

Nowhere in the scheme does it specifically exclude any staff member from joining, in fact the term officer is used in the generic sense to describe a member of the scheme. 

Particular attention should be paid to the wording here, “the word “Officer” shall be construed accordingly, but the meaning of the word “Officer” or the status or conditions of service of any person to whom it is extended”. It is at the discretion of the employer who they permit entry to as per section 2 part (2), which states “

In conclusion the Employee sought the following;

The Adjudicator declare that the employee be admitted to the Defined Benefit Scheme and same to backdated accordingly and award compensation as the Adjudicator may deem fit in the circumstances.

The Company is a commercial state-owned Company and is a estuarial port authority.. The business purpose of the group is to facilitate the flow of goods and attendant tracking information throughout the Estuary.  With this purpose in mind, the group provides the infrastructure, facilities, services and accommodation necessary to cater for the efficient transfer of goods between land and sea transport. 

The company was formed in 2000, resulting from the merger of the two companies; these in turn were originally formed in 1996 following the Harbour’s Act of that year, which provided for the establishment of statutory port companies, free to operate independently with a strong commercial remit, while ownership was retained by the State.  The current headcount for the company is 52.

The employee commenced employment with the Employer on 01 June 1987.  The employee is employed in the role of Coxswain. The employee annual salary is €55,992.

There is already a pension arrangement in place for the employee. It is a defined contribution scheme into which the company pays 5% of the employee’s basic earnings. The employee accepted this arrangement by his letter of 13th June 2000. This letter commences with the following statement “As agreed between us some time ago …” and then goes on to refer to the setting up of a personal pension plan.  The four other members of the Pilot Boat Crew have similar arrangements. The Pilot Boat Crew have no entitlement to be members of the existing Defined Benefit schemes.

This is not the first time the employee has brought this claim. On the 08th November 2007, the Labour Relations Commission heard this claim, and a Recommendation was issued dated 04th March 2008. The Recommendation stated that the Employer and/or the Trustees would be given three months from the date of the Recommendation to consider making a proposal to the employee. The parties were due back to the Rights Commissioner for a further hearing on the 11th March 2009 however, the employee wrote to the LRC and requested the matter be adjourned.  There was no further hearing on the matter. 

A period of time lapsed and in November 2012, a meeting was held between the employee, and other employees, regarding the pension arrangements.  At the meeting, the company reaffirmed its position as being the same as the previous offers in 2004 and 2006.  It was agreed at the end of the meeting that both sides would take time to consider their respective position and the employee had indicated his intention to progress the matter again to the Rights Commission Service. 

In May 2019 a meeting took place between the Employer and the employee again in respect of the pension arrangements.  As a follow up to that meeting, the Employer wrote to the employee to reaffirm the company position that:

The Port Company will not provide access to a Defined Benefit (DB) scheme

The Company continues to provide access to the existing Defined Contribution (DC)..

The employee submitted his claim to the WRC on the 12th February 2020.

There is already a pension arrangement in place for the employee. It is a defined contribution scheme into which the company pays 5% of the employee’s basic earnings and this has been in place since June 2000. 

During 2004 the employee and Employer engaged in a pay arbitration process with a recommendation from the Mediator, regarding pension noted as follows: “.. I recommend that a funded scheme be introduced with effect from 1st September 2004.  The nature of the scheme and the matter of prior service to be pursued through the appropriate national and local channels …..”

On 14th October 2004, the employee and another employee wrote in reply to proposals issued on the pension scheme. It is very clear from the detail contained in the proposals that the employees were speaking about DC options only.

The company responded to both gentlemen, dated 28th October 2004. It is absolutely clear from this correspondence that a defined benefit scheme was not being discussed at that stage and any claim for such a scheme, based on rejected proposals prior to that date were effectively dropped following the Mediators recommendations.

The Company’s existing defined benefit pension schemes are closed to new entrants.  This has been clearly outlined by Trustees of the Scheme in correspondence to the company dated 12th March 2020 in which it clearly states that for administrative and funding purposes the Plan was closed to new entrants with effect from 01st January 1993.

The Defined Benefit Scheme has 25 members of which 22 are in receipt of pensions.  The average age of members is 81 years.  The Scheme is subject to the funding requirements set out in the Pensions Act 1990 for which the regulator is the Pensions Authority. Under the Pensions Act, defined benefit schemes are required to be funded to a certain minimum level, known as the funding standard.  The Scheme is not in a position to satisfy the funding standard. In order to meet the funding standard deficit (currently around €5.5m) and future funding requirements, a Funding Proposal was agreed in July 2013.  Under the provisions of the Pensions Act, an “on track” assessment is required to be undertaken each year. The Funding Proposal was based on certain assumptions including the investment return on the assets held by the Scheme, bond yields and mortality. In the period since July 2013, bond yields have fallen by around 1.5%.  Consequently, the value of liabilities is now much higher than had been projected in 2013, which has not been matched by the return achieved on the assets of the Scheme.  As a result, the Funding Proposal for the Scheme is no longer on track.  It is inconceivable that the company would get authorisation, either to add to existing liabilities by opening up the scheme or to start up a new defined benefit scheme for a single employee in the current circumstances. 

The company position is very clear in this matter.  The Employer suggested that this claim is in itself malicious.  This matter has been ongoing for over 20 years and despite the fact  

Arbitration took place in 2004, the recommendation was to be a funded scheme, the company have this in place,

In his letter to the company on the 14th October 2004, the employee responds to the company’s proposals on the pension scheme and his correspondence clearly confirms he is only speaking about a DC scheme,

The employee already has a pension arrangement in place, and it is a defined contribution scheme and he accepted this on the 13th June 2000.

The employee alleges he has a dispute with his employer as he agreed a Defined Benefit Pension Scheme with his employer in 1992. This was never implemented. He has attempted many times to have his issue resolved but with no success.

At the hearing on the 19th November 2020 a matter had arisen regarding the Defined Contribution Scheme, an adjournment was agreed between the parties regarding this matter which was resolved between the parties in March 2021. 

The employee has stated that the Employer has breached a 1993 Collective Agreement between SIPTU and the then employer to initiate an approved Defined Benefit Pension Scheme. The Employer strongly refuted this allegation and outlined the following:

This matter has been ongoing for over 20 years despite the fact Arbitration took place in 2004 between the parties, the recommendation was to be a funded scheme, the company have this in place, 

In his letter to the company on the 14th October 2004, the employee responds to the company’s proposals on the pension scheme and his correspondence clearly confirms he is only speaking about a DC scheme, 

The employee already has a pension arrangement in place, and it is a defined contribution scheme and he accepted this on the 13th June 2000. 

The employee has alleged that the Employer used the fact of converting to a commercial semi-state company to justify their withdrawal from the scheme which had been recommended for approval by the Department of the Marine. Furthermore, the employer has breached their obligations under the 1996 Harbours Act.

This claim is under the Industrial Relations Act, 1969 and the Adjudicator does not have any jurisdiction to make a decision on a breach of a piece of legislation that does not fall under the remit of employment law.

For the purposes of clarity, the Act differentiates between companies which shall or may prepare and submit a pension scheme to the Minister for the Marine for approval. A superannuation benefit for the purposes of the Act is a pension, gratuity, or other allowance payable on resignation, retirement, or death. Notably, the Act does not require the Company to create a specific type of pension benefit i.e., a defined benefit scheme or a defined contribution scheme. 

A draft defined benefit pension scheme for a limited number of employees was sent to the Harbour Commissioners circa 1994.  In April 1998, the Company, on foot of expert advice found that it would be uneconomic to introduce the proposed scheme and a defined contribution scheme would be preferred and this decision was communicated to the Department.  This decision was accepted by the Department. Important to note, there is nothing in the Act which suggests that a defined contribution scheme would not be allowed.

A letter from Irish Pensions Trust Limited in March 2020 confirms that the existing Company Plan closed to new entrants from January 1993. From then onwards, a defined contribution scheme was in place for all members of the Company.

As evidenced previously the employee is a member of a Defined contribution schemes since June 2000.  The scheme of June 2000 also accounted for past service via a lump sum payment on inception. He availed of a second scheme from September 2004.  Both Schemes were regularised in 2021 where it was noted that the employee retained all benefits to the date of regularisation with it being noted that at that time the Company has contributed 86% to the scheme compared to 14% by the employee. 

This clearly demonstrates that the Employer has fully complied with the Act as the employee has had access to a defined contribution scheme. 

As stated at the outset, the purpose of the adjournment on the previous occasion was in regard to a matter arising in the Defined Pension Scheme which needed to be resolved and which was subsequently resolved in March 2021.  During this time the parties had shared relevant information regarding the scheme.  However, on the 04th January 2020, the employee made a Freedom of Information request to the Department of Transport, and the Employer agreed to await before the matter continued back to the WRC.  Important to note that this information had no relevance to the claim in hand. 

The information requested by the employee was in excess of twenty years old and relates to companies in existence prior to the formation of the Employer. It is unknown as to whether any such data may be within the power, possession, or procurement of the Employer. Equally the information requested was not personal data relating to the Employee but rather of a generic nature.

The employee wrote to the Employer on 20th January and on the 28th January seeking additional information which contained two specific requests. The Employer fully complied with and forwarded on; a copy of the trust deeds & rules to the Defined Benefit Scheme 

 This Scheme was discussed extensively at a local on the 22nd December 2020 where the Employer noted that the Scheme rules limit membership to Officers of the Commissioners only. The Company also confirmed that no new members have been admitted to Defined Benefit Schemes at any stage since the formation of the merged companies. The last member admitted to the Scheme occurred in February 1993.

The Employer confirmed that since its inception, the merged Company has not established any new Defined Benefit Schemes for existing or past staff members. 

The Employer strongly refuted the allegation that they have breached Section 41 of the Harbours Act. The employee did not meet the criteria to join the Commissioners Officers’ Superannuation Scheme. As defined in the scheme “A pensionable officer” includes a general manager, engineer, harbour master, collector of rates, clerical officer, or typist; our understanding is that none of these encompass the role of the employee which is that of Coxswain. Additionally, the Scheme closed to new entrants in January 1993. The Employers view this allegation as null as void as the scheme had closed to new staff members since January 1993 and it was a closed scheme.

In regard to the statement regarding Section 39 of the 1996 Harbours Act, the Employer stated that the above applies additionally to this allegation. As outlined above, the employee had a defined contribution pension arrangement in place, he confirmed this writing in June 2000, and it recognised prior service. This took place prior to the transfer of functions to which occurred in September 2000.

The employee has availed of pension contributions far in excess of what was agreed in June 2000 and indeed over and above more than employees who were members of defined contribution schemes over the period. Upon regularisation in 2021, the employee’s pension had been receiving contributions from the Employer of 86% compared to a personal contribution by him of 14% in the same timeframe. 

The employee has at all times during his employment, benefited from conditions of service or of remuneration greater than the conditions of service or of remuneration to which he or was subject immediately before the relevant vesting day. 

The Employers position is very clear in this matter and remains as it was over the past 20 years this matter has been ongoing.

The Employer’s rejected the employee’s claim.

The Employee has a trade dispute with his Employer regarding his entitlement to enter a Defined Benefit Pension Scheme and be granted past service credit and be entitled to the pension benefits of the pension scheme at the age of 60, having reached 40 years service at that time. I have examined the substantial documentation and correspondence submitted pre and post hearing on this dispute much of which was historical correspondence.

The Background and key elements of the submissions;

The Harbours Acts 1946 and 1947 define the rules relating to membership, operation, benefits and dispute resolution of the scheme.  The Scheme is known as the X Harbour Commissioners Officers Superannuation Scheme 1962 positions that are eligible for membership are laid in Section 2.2.

Under Section 4.1 the Commissioners are required to maintain a register of established officers (members of the scheme).

Section 4.3 introduces the arbitration in relation to a dispute as to whether a person should be registered in the scheme.

Section 32 states” If in doubt, dispute or question arises or is, in the opinion of the Minister, likely to arise as to whether a person is an Officer for the purpose of this scheme, the doubt dispute or question shall be decided by the Minister and his decision shall be final”.

Section 37 sets out who an Arbitrator can be appointed to resolve a dispute and that the Arbitrators decision is final and binding on the parties to the dispute.

The Employee transferred to the new Port Authority in 1997 and the Act provided for continuity of any pension scheme. However, the Employee was not a member of the DB scheme at that time. . Section 41.1 (b) states (in part) “That a person who was not participating in such a scheme may after the relevant vesting day, participate in such scheme in accordance with the provisions thereof.” The provisions thereof did not allow for the job title of the Employee to participate in the scheme.  So, the 1996 Harbours Act does not grant the Employee membership of the DB scheme.

A Letter from the Employer to SIPTU from 1993 was submitted however nothing in this letter refers to a DB scheme. In reply SIPTU states” With the exception of PS (not the Employee in this dispute) the members are agreeable to joining the Pension Scheme.” No reference is made to a DB scheme. (24/3/1993).

A memo from the Employer to the department of Marine in 1994 refers to agreement “to initiate pension scheme for Pilot boatmen. Will submit scheme based on model scheme. Funding will be by Pilot Boat rates” (this last word is a little unclear). No specific mention is made of a DB scheme.

In November 1994 in response to a query from SIPTU the Department confirmed the Employer had advised an agreement was reached to initiate a pensions scheme for pilot boatmen and they intend submitting draft for conformation by the Minister. (9/11/1994).

No mention was made of a DB scheme in both correspondences

An undated and unsigned “Company Terms for Proposed Agreement” which appear to be around 1994 was provided which stated a “Defined Benefit Scheme will be established not later than 3 months following the necessary formal approval by the Department of Communications, marine and natural Resources and the Department of Finance.”.(1994) Even if this agreement was in place the establishment of the scheme was subject to Department of Finance approval and no evidence of same was provided to the Adjudicator.

In January 1998 the Department of the Marine wrote to the Department of Finance concerning the pension scheme for the boat men, stated the scheme had been drafted on the same lines as that submitted in respect of the X Harbour Commissioners unestablished employees draft Nov 1996 and stated the Department is satisfied with the draft and sought observations form the Department of Finance.(28/1/1997)

In 1997 correspondence shows discussion around a Pension plan for Pilot Boatmen wit the Department of Finance and states it was drafted in the same way as the plan in 1996 (A DB scheme). (28/2/1997).

Al letter from SIPTU dated May 1997 to the Minister for the Marine asked him to intervene in introducing the pension scheme. (11/5/1977)

In 1998 correspondence from the Department of Finance questions the employing body, contribution arrangement, that approval of the minister for the Marine and Natural Resources and the Minister for Finance are required, questions the other schemes in place at the time and set out that 65 would be the required retirement age and not 60. There is no approval for the scheme in this letter. A personal footnote from a staff member in the Department of the Marine questions why the Pilot boatmen were not included in the unestablished scheme. (30/1/1998)   

In April 1998 the employer wrote to the Department of Marine and Natural Resources stated the scheme was “uneconomic” as it would be for four people and they were advised to negotiate a DC scheme. (17/4/1998)

In July 1998 the Department asked why the Port decided not to go ahead with the scheme and asked for details of the alternative proposals. (17/7/1998). In reply the Port stated they had no funds, the scheme was too expensive and they were required as a commercial entity to act independently. (20/7/1998)

A letter from the CEO to staff in June 2001 confirmed the protections envisaged by the Harbours Act will be respected.

In October 2003 the then Chief executive wrote to SIPTU and stated “The Company is prepared to negotiate the introduction of a defined benefit scheme for your members. The level of the Company’s contribution for which will require further discussion”. (23/10/2003)

In October 2004 the Employer wrote to the Employee setting out pension contribution options.  None of these options included a DB Scheme.

A memo from the Employer to SIPTU in May 2007 confirmed the introduction of a DC scheme, that it was ultimately accepted by all employees, except the Employee involved in this dispute, and would not be entering into arrangement for a DB scheme.

In 2007, in reply to SIPTU the Employer stated it cannot engage in negotiations for a defined benefit scheme for Pilot Boat crew. (21/7/2007)

In 2019 the Employer confirmed in writing that they would not be providing access to a DB scheme for the employee. (8/5/2019)

The Employer gave evidence that the pension assumed by the Employee if he were a member of the DB scheme was significantly overstated.

No new DB Schemes have been established and the last person to join the DB scheme was in 1993.

A financial statement of the Employer was provided from 2020 showing retained profits of 3.3 ml Euros and a deficit for the DB schemes in existence of 2.9ml Euros which had been fully provided for in the financial statements.

The Funding Certificate from the Pensions Authority dated 1/7/2020 shows liabilities exceed assets by approximately 6ml Euros, an amount equal (approximately) to the assets of the scheme.

Findings

While this is an industrial relations issue its outcome depends on a number of issues. I will now set out these out with my findings on each.

1.     Has the Employee the clear and unambiguous entitlement to be a member of the DB scheme?

 Nothing in the correspondence or communications established a right for the Employee to be a member of the DB scheme and while indications were given a DB scheme would be set up this was always subject to Department of Marine and Finance approval and no evidence of same was provided to the Hearing.

2.     Was the Employee ever given a legal right, which has been denied to him, to join the DB scheme?

There is no evidence the employee has established a legal right to join the DB scheme.

3.     Did the appropriate persons ever give the Employee a clear commitment to join the DB scheme?

The appropriate person to give the employee a right to join the scheme is under Section 32 of the Act governing the DB scheme and I understand this to be the current Minister for Transport, but advice may be sought by the Employee on who the appropriate current Minister is. No evidence was given that the relevant Minister approved the inclusion of the Employee at any time.

4.     Is the Employees job (title) covered by the DB scheme description of what roles are eligible to join the DB scheme?

The job titles defined in the Scheme do not include the job title of the Employee or anything similar and therefore this is an indication the Employee is not eligible for membership of the scheme.

5.     Who is entitled to allow entry into the scheme and what is their position on the complaint?

The only person entitled to admit the employee to the scheme is the current relevant Minister as per Section 32 of the Act.

6.     Was there ever a clear and unambiguous collective agreement that was agreed that entitles the Employee to join the DB scheme?

No collective agreement was submitted that confirms the Employees entitlement to enter the DB scheme.

7.     By accepting an alternative offer to join a DC scheme (which was significantly funded by the Employer) has the Employee, through this action diminished his grounds for pursuing his claim?

The Employee joined a DC scheme and it appears has benefited from some additional funding to the scheme, by error, by the Employer. It also seems that this issue has been resolved between the Parties and is not relevant to my deliberations at this stage. However, what is clear is the Employee has always maintained his entitlement to join the DB scheme and by accepting membership of the DC scheme, which was a practical solution at the time the dispute commenced many years ago, his participation in the DC scheme has not debarred the Employee from pursuing his complaint under the 1946 and 1947 Harbours Acts per Section 32.

8.     Has the Harbours Act been breached in relation to the participation of the Employee in the DB scheme

There is no evidence the Harbours Act has been breached by the Employer as it only applied to employee who were participating in schemes prior to its enactment and did not confer an entitlement on the employee to join the DB scheme per se.

In relation to Section 39 the Employee did not have the right to join the DB scheme before the Act commence therefore did not suffer any as a result or “be brought to less beneficial conditions of service or of remuneration than the conditions of service or of remuneration to which he or she was subject immediately before the relevant vesting day.. “.

9.     What is the appropriate arbitration forum for the dispute?

Section 37 of the Harbours Acts 1946 and 1947 sets out the mechanism for resolution of a dispute regarding member ship of the DB scheme. “It states

“(a) any dispute which is required under any of the foregoing provisions hereof to be decided by Arbitration shall be referred to the arbitration of a single appointment Arbitrator to be appointed by the Commissioners and the other parties to such dispute or at the option of the Commissioners or such other party, a single Arbitrator to be nominated by the Minister”. and “(b) …the determination will be binding on the parties.”.

Recommendation:

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

Key Words:

Dated: 29-09-22

Workplace Relations Commission Adjudication Officer:  Peter O'Brien