Complainant

Respondent

Parties

Catherine  Martin

Department Of Education

Representatives

 Irish National Teachers' Organisation

Department of Education

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00053880-001

25/11/2022

The Complainant is a national schoolteacher. In 2004 she was seconded to a post in what was then known as the SPDS under the terms of Circular 11/02. In 2007 the Complainant was seconded to the position of Director of the Education Centre in Carrick on Shannon. The allowance payable to Directors of Education Centres was fixed at the 10th point of the pay scale of a school principal teacher by an agreed report confirmed in Circular1/99. In 2017 Circular 394 of that year imposed a limit on the term of teachers seconded to the Director role, limiting the period of secondment to five consecutive years. As the Complainant had already served five consecutive years at that stage, she was returned to her substantive post and location as a teacher. Given the loss of income to the Complainant and four others caused by the new rule introduced by the Department, a claim for retention of the allowance by the Complainant and others was lodged with the Teachers Council. An adjudication outcome upholding the claim was issued on 9 July 2018 and was implemented with effect from 1 September 2018. There was no circular or letter by the Minister/Department confirming acceptance of the adjudication decision.  In October 2020 and again in 2021, percentage increases payable under Building Momentum were applied to the school principals’ scale/allowance at the 10th point and then added to the allowance paid to the Complainant.  The value of the allowance was €28914 in October 2021. With effect from 1 February 2022 the 10th point of the principals’ allowance increased to €31656 and later €32932 and €33591 due to the application of benchmarking to the salary/allowance of principals in negotiations around what is colloquially known as the ‘envelope’ available for additional payments to groups in the public sector in sectoral bargaining under public service agreement-Building Momentum. The refusal of the Department to pass the increase in the allowance on to the Complainant forms the basis of this complaint. The value of the unpaid allowance or payment withheld was calculated as €2301.07 gross by the INTO - a figure that the Department confirmed in writing they do not object to. There would be an ongoing loss outside of the cognisable period.

The Complaint is that there was an unlawful deduction from the Complainants wages as defined in Section 4 of the Payment of Wages Act 1991. The complaint was lodged within six months of the knowledge of the non-payment, or unlawful deduction. The Complainants position as articulated at the hearing is that the acceptance by the Department of the adjudication report in 2018 created a link between 10th point of the principal teachers allowance which should mean that increases in that allowance are automatically payable to the Complainant (and the others in the original group of five who were party to that claim before the Teachers Council). The Complainant is aware that the uplift in the allowance following on from the benchmarking/building momentum increases were applied to those Centre Directors who have retired (and were part of the original group). That this was an overpayment was only notified to those who received the recent uplift after the commencement of these proceedings.  A copy of the Adjudicators decision of 9 July 2018 was provided.

Evidence of Mary Hough

The witness stated that she was the Director of Centre in Sligo from 2008. She was paid at the 10th point of the principals’ salary scale until her retirement in August 2018. She has received the salary adjustments related to the 10th point since her retirement including the recent adjustment to the principals salary scale effective February 2022. Ms Hough confirmed that she was one of the five Directors who were the subject of the adjudication decision in July 2018.

INTO supplementary submission

Responding to the post hearing clarification provided by the Respondent, that the allowance of existing Directors of Centres was not increased in line with the benchmarking changes paid to school principals and remains at the same level as is paid to the Complainant the INTO wrote: The Complainant notes the rate of allowance payable to current directors of two Centres of Education. Ms Martin acknowledges that this rate is currently payable to those two directors in those named centres due to them having a different contract compared to her. The contract that Ms Martin held during her tenure was explicitly clear in relation to the amount payable i.e., that the allowance payable to her was at the 10th point of the Principals Allowance scale. Section 1.2 of her contract states- “In addition a pensionable allowance equivalent to the 10th point of the Principals allowance scale, as provided for in Conciliation Report 1/99 is also payable.”

And

The Complainant submits that the allowance for an Education Centre Director continues t be aligned to the Principals Allowance scale. The Department of Education took a decision unilaterally to align it to the 10th point of the Post Primary scale for those Directors taking up the position of Director in 2018 and thereafter. The Complainant submits that the contract she held pre-dates this change. The Department cannot unilaterally change the terms of contract as per the adjudication decision of July 2018.’

The secondment allowance sought in this complaint is not a statutory payment of any sort.

The Minister has the authority to set the rates of pay in the first instance, including the qualifying criteria for any allowances.

There is a long-established centralised approach to setting the terms and conditions of school staff paid by the Department of Education.

Section 5 of the Payment of Wages Act 1991 defines a deduction.

Noting that the Complainant accepts that she received the allowance in question upon her return from secondment in 2018 until the benchmarking award in February 2022, the Department argues that the Complainant has received the correct amount (payable to her).

A history of the pay mechanism and increases payable to directors of centres of education was set out. The current rate for that group at €30682 is contained in circular 0007/2023-the amount being paid to the Complainant. Circular 1/99 set the rate for Directors of Centres at equivalent to the 10th point of the principals of the range of allowances payable to school principals but makes no distinction between the primary or post primary sectors.

Reference was made to that part of the adjudicator’s decision of July 2018 speaking to a unique situation …and cannot be used as a precedent.

Reference was made to the system of collective bargaining in the sector which does not allow for rejection or acceptance of those collective agreements by individual employees.

Regarding the pay for school principals, their allowance is one for a post of responsibility based on the number of allocated teaching posts in a school. The second report of benchmarking from 2007 which recommended increases in allowances remained outstanding for that group prior to the negotiations under the establishment of a sectoral bargaining fund under Building Momentum. The latter agreement provided a fund of 1% of basic pay to fund any outstanding claims, adjudications etc. The unions were advised of the value of the fund available for the different sectoral groupings with the cost of any additional payments to be met from that fund-the so called ‘envelope’ of funding available for the different subsectors. One of those claims which were chosen by the INTO and settled following negotiations on the distribution of the envelope funding was the benchmarking report of 2007. The agreed outcomes were notified in two circulars. The second circular referred to the final adjustment for the remaining balance of the sectoral bargaining fund. The INTO did not include the Centre Directors in their claim for the ‘1%’ fund. The cost of any increase to this group was not included in the costings sent to the INTO.

As a consequence of the sectoral bargaining process under Building Momentum, there has been a divergence between the rates of payment to Principals and Deputy Principals across the two sectors.

As a result of the negotiations, the 1% envelope has been exhausted and there is no further funding available and neither is it open to the Department to re-engage on this issue. It is the clause within the Agreement which refers to unresolved sectoral claims which applies to any claims on behalf of Directors of Centres.

The allowance claimed by the Complainant is not payable under the Sectoral Bargaining Fund. The Director of Education Centre Allowance while aligned in value is not related to carrying out duties as a Primary School Principal.  The value of the allowance payable to the two categories has now diverged. There is only one allowance payable to the Directors -that published in the relevant pay circulars. It is open to the Directors of Centres to seek to renegotiate their pay allowance in the future should they wish to do so. To suggest that the Director of Education Centres Allowance should be increased to the value of the of the new Primary Principal Allowance Point 10 is flawed.

Regarding those retired Director of Centres who received an uplift in line with the revision to Principals pay scale under Building Momentum, this was a data entry error and steps were taken/being taken to rectify the error.

Regulation of certain deductions made and payments received by employers.

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.

Teachers pay in general is regulated by various means. These can be national or general round agreements exclusive to the public sector/service or a national agreement comprehending both public and private sector workers. In the public sector there have been many instances of sectoral bargaining which affecting one or more sectors or individual, grades, groups, or categories. These sectoral agreement and the resulting pay increases and other terms may apply automatically to linked grades or there may be adjudication decisions for those who are comprehended by the relevant adjudication schemes which are established from time to time. In some cases sectoral awards, they were determined by the Labour Court where the workers concerned have access to that Body.  Over decades different terms have developed to cover a myriad of linked pay arrangements with pay relationship and pay parity being the most common but linkages, alignment, marker grades, benchmarking are also terms which were in vogue at different times with various arrangements setting the basis on which some of these agreements were implemented across different groupings or categories. The work of the aligned post holders could be broadly the same or fundamentally different. Allowances seeped into the system at many levels sometimes substituting for the establishment of an evaluated rate of pay or general increase. Irrespective of the term applicable to the pay mechanism, the key point is that these were group and not individual agreements. Red circled rates of pay applicable to individuals or subgroups were not uncommon. This analysis and conclusion are consistent with the position of the Department Officials that they assert that they conclude pay category agreements with groups and not individuals.  And so it was in the case of the Directors of Centres of Education by way of an agreed report in 1999 which fixed their rate of pay by payment of an allowance equivalent to the 10th point of the principals rate of pay. Thus, a direct pay relationship was established at the time between two categories of workers doing different jobs and which continued through pay reductions, pay restoration and general round increases for over twenty years during which time they were aligned to the 10th point of the salary scale for school principals. What occurred in 2018 was not a decision on the rate of pay for any directors of centres, but rather the allowance in place since 1999 should be retained by those who were compulsorily stood down from that work by virtue of the directive from DEPR on a red circled basis given that they were no longer performing the duties of Director of Centres. This conclusion contradicts the position of the INTO where they refer to different contractual pay arrangements as between those Directors appointed before the adjudication report of July 2018 and those who like the Complainant were part of the group of five Directors who were the subject of that report. The only, albeit significant contractual change in the case of the Complainants and four others following on from the 2018 report was that, like school principals who were involuntarily removed from their posts after more than five years’ service, they would retain the allowance post that change. No new or individual pay relationship was established which disturbed what had applied since 1999. The Complainant’s pay is determined by the amount payable to Directors of Centres through that category and not directly in her own right with the school principal grade.

In plain terms the question which arises at this juncture is whether the Complainant is entitled to receive the increased rate of pay by way of an increased allowance following on from the agreement reached with her representative trade union in respect of school principals under the sectoral bargaining element of Building Momentum in respect of primary schools. The conclusion is that the application of the outcome of negotiations on the 1% envelope and the application of the subsequent round increase of 3% is correctly captured in the related circulars in 2022 and 2023 in limiting the payment of the effects of benchmarking award to School Principals in that sector. Those sectoral negotiations in respect of that category were similar to those historical arrangements outlined in these conclusions. The Directors of Centres were not included as a group or category by agreement with the trade union either as claimants under benchmarking or based on an established pay relationship. The INTO as was their right under the overarching agreement, opted to address an outstanding award(benchmarking) in respect of Principals and named others rather than opt for a general round increase applicable across the sector.  This may well have created what is known within public pay terminology and may not be the only one to follow from the type of local bargaining clause agreed under Building Momentum. However, the correction of such an anomaly or change, if there is to be one, is a matter for direct negotiations with the category of Directors of Centres at an appropriate time and circumstance. Accepting that the Complainant was not party to an agreement to change the rate of pay to school principals while excluded Directors of Centres, she was nonetheless comprehended by and received the other benefits of the agreement Building Momentum, and her pay is therefore regulated by the terms of that agreement and the related circulars.

Based on the forgoing conclusions, the finding is that the complaint that a properly payable increase in the allowance payable to the Complainant was unlawfully withheld from her is not well founded.

To be clear however, the Complainant has a direct pay alignment with Directors of Centres which she is entitled to retain based on the adjudication report of 2018. That pay relationship is not one which cannot be unilaterally removed from her outside of some due process such as that which led to circular 1/99.  Hopefully such a scenario will not arise but any potential disruption of the terms of the adjudication report of 2018 is not something to be considered lightly given that payment of the allowance in question is derived from the direct pay relationship with the Directors of Centres, which does not require the Complainant to be performing the duties of that category for that allowance to be properly payable to her.

No comment is made in relation to the so-called data entry error made in respect of those who have retired as I consider that would be both inappropriate and beyond my jurisdiction at this point.

CA-00053880 The complaint brought by Catherine Martin against the Department of Education under the Payment of Wages Act on 25/11/2022 is not well founded.

Building Momentum-sectoral bargaining-Education-non-payment of increase.