Complainant

Respondent

Parties

Andrew Whelan

Aer Lingus Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00065396-001

14/08/2024

The complainant was employed as an airline pilot from March 12th, 1998, until his resignation on September 10th, 2023. He says he should be retrospectively paid monies (which he values at €4,800).

The complaint arises as a result of pay awards that were subsequently made on foot of a Labour Court Recommendation to Aer Lingus Pilots although the complainant had voluntarily resigned his employment on September 10th, 2023.

Up to that point he had been a fully paid-up member of his trade union, IALPA/Forsa.  On July 23rd, 2024, the pay review process had been ongoing for approximately two years prior to his retirement date and finally came to a conclusion.

As part of this agreement there is a backdated pay element to that agreement, the effective dates of which relate to a period while he was employed with Aer Lingus.

These effective dates are asfollows,

2%witheffectfrom1stJanuary2023,

1.75%witheffectfrom1stJuly2023

2%witheffect from1stOctober2023.

During the period of back pay (awarded by the Labour Court on 23/7/24) the complainant was a full-time employee and paid-up member of FORSA.  Aer Lingus stated that " as you have retired, and are no longer in employment with Aer Lingus you will not be in scope" i.e. to receive back pay awarded to my pilot colleagues.

The effective claim period only commenced with the Labour Court decision in July 2024. He says his claim is righteous and legitimate particularly as the negotiations stretched over twenty-two months.

This claim is wholly rejected by Aer Lingus.

This WRC complaint pursuant to the Payment of Wages Act 1991 (the 1991 Act) was filed on August 7th, 2024. Aer Lingus submits by way of a preliminary issue that this claim is out of time and is statute barred.

All payments due to the complainant under his contract of employment and/or otherwise relating to his employment were paid to him on or before his employment ended on December 31st  2023.

The Workplace Relations Act (S.41) prescribes a timeframe within which a claim under the 1991 Act can be brought; that is six months from the date of the deduction/non-payment becameproperly payable.

There are no outstanding payments due to the complainant in respect of the cognisable period for this claim under the 1991 Act which is the six months preceding the date of claim so from 8 February 2024 to 7 August 2024 when this complaint was submitted to the WRC.

To ground a successful complaint under Section 6(1) of the 1991 Act, a claim must establish that there has been an unlawful deduction contrary to Section 5 of the Act within the prescribed statutory timeframe to bring a claim. There has been no deduction or non-payment of any monies owed to the complainant in the course of his employment with Aer Lingus and during the cognisable period of this claim.

Without prejudice to the preliminary issue above, Aer Lingus wishes to make further submissions in defence of this claim as follows:

Section 6 of the 1991 Act sets out:

“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)……. then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

To ground a successful complaint under Section 6(1) the Payment of Wages Act 1991, a complainant must establish that there has been an unlawful deduction contrary to Section 5 of the Act. It is submitted by Aer Lingus that there has been no deduction or non- payment of any monies properly payable to the complainant in the course of his employment with Aer Lingus and during the cognisable period of this claim.

In Dunnes Stores (Cornelscourt) v Margaret Lacey and Nuala O’Brien1 [2005] IEHC 417Finnegan P., the High Court found that in determining claims under the legislation,

“the Employment Appeals Tribunal in order to make a determination ought first properly to have had regard to the remuneration properly payable to the employee”.

The High Court in Marek Balans v Tesco Ireland Limited2[2020] IEHC 55made clear that the Labour Court, when considering a complaint under the Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made.

That matter having been addressed; it is for the Court to determine whether the wages actually paid on the occasion were less than the wages which were properly payable on the occasion. If the wages actually paid were less than the amount properly payable, then the difference could be concluded to be a deduction within the meaning of the Act. If it is established that a deduction within the meaning of the Act had been made from the wages properly payable on the occasion, the Court would then consider whether that deduction was lawful.

The test was set out in A Government Department and A Worker3(Appendix 3) as follows:

“The issue to be decided by the Court in this preliminary matter is whether, at the material time, a rate of pay was properly payable to the Appellant higher than that which was actually paid to him. If no such rate of pay was properly payable to the Appellant at the material time then the Act at Section 5(6) can have no application insofar as the pay received by the Appellant was in accord with that which was properly payable to him.”

It is submitted that during the cognisable period for this claim, no payments that were properly payable to the complainant were due and/or unpaid such that would ground this claim under the 1991 Act.

The Background to Labour Court Recommendation (LCR 23007) is that on July 8th, 2024, the Court issued a final Recommendation on an industrial dispute between Aer Lingus and IALPA, the pilots’ union.

Further clarification was sought by Forsa from the Court on July 9th, 2024, and the Court responded on 10 July 2024 to the queries raised. The recommendation was accepted by IALPA members following a ballot.

The Labour Court final Recommendation was the final stage in a protracted process of engagement between the company and IALPA involving a pilot pay tribunal whose recommendation was rejected by the pilot body in January 2023, direct engagement, conciliation before the WRC in March 2024, which was unsuccessful, an agreed referral to the Labour Court (which first recommendation in May 2024 was not accepted by IALPA members) and industrial action by pilots during the month of June 2024.

In the context of pay, the Labour Court Recommendation provides for the following:

“That pay should be adjusted as follows over the lifetime of a pay agreement to commence on 1st January 2023 and conclude on 31st December 2026:

2% with effect from 1st January 2023, 1.75% with effect from 1st July 2023 2% with effect from 1st October 2023 3.5% with effect from 1st January 2024 1.5% with effect from 1st October 2024 3% with effect from 1st January 2025. 3% with effect from 1st January 2026 1% with effect from 1st July 2026

Total percentage pay increase in the period – 17.75%”

Of note is that the Labour Court itself noted the application of the pay terms to current pilots. In a letter of clarification on several unrelated queries to Forsa on 10 July 2024, the Chairman of the Labour Court noted:

“The Court made a Recommendation as regards pay growth. No engagement before the Court addressed any matter associated with the manner of application of any pay increases set out by the Court. It is the Court’s understanding as a result that any pay increase recommended by the Court will be applied in the normal manner of application of pay round increase to pilots in the employment.”

This demonstrates that the intention and scope of the recommended pay agreement was to pilots in the current employment of Aer Lingus at the time the ballot was accepted (i.e. end July 2024).

The complainant appears to be asserting an implied term into the Recommendation that it shouldhaveretrospectiveapplicationtohimasaformerAerLinguspilotnotwithstanding that he had resigned his employment before matters had even been referred to or considered by the WRC and/or the Labour Court.

At no stage during any part of the industrial engagement at the PPT, WRC, or in the Court was there any submission that the ultimate outcome of the pay negotiations should have retrospective application to former employees of the Company who had left employment before the ultimate outcome was determined and/or balloted on or accepted. In simple terms, the complainant was not in scope of this Labour Court Recommendation and as such these pay awards are not properly payable to him.

Aer Lingus has a long history of industrial relations with several different union groups to include ICTU. It is established custom and practice in Aer Lingus that its industrial agreements have application to those who are in current employment.

Even wherethere have been retrospective pay elements agreed and/or where an industrialagreement has been backdated in terms of its effective date, never have such agreements had application beyond the current workforce - in simple terms, to benefit from an industrial relationsagreementconcludedaspartofacollectivebargainingprocessinAerLingus,it is a prerequisite that individuals be in active employment at the point where an agreement is balloted on and accepted.

The claims now before the WRC from the complainant and another colleague are unprecedented in this regard and entirely opportunistic – in the sense that we have the complainant and another former employee seeking to benefit from an industrial agreement that was concluded long after their employment with the Company ended.

In summary, it is submitted that this claim is statute barred and out of time insofar as there were no deductions (or non-payment) of monies properly payable to the complainant during the cognisable period.

Without prejudice to this preliminary point, the complainant was outside the scope of the Labour Court Recommendation and the pay awards contained therein had no application (and were not properly payable) to him as a former employee of the company no longer in employment at the date the Recommendation was accepted by the parties.

This is one of two separate, but identical complaints made by retired pilots, but which, for convenience and by agreement of the parties were heard together.

The complainant raises an interesting question in this complaint as to whether a former employee should benefit from pay increases retrospectively applied to a period when he had been in employment.

But while interesting as a subject for general discussion, regrettably for him there is no basis for such a complaint under the Payment of Wages Act.

Indeed, as the respondent argues in its submission it does not have much validity even as a purely industrial relations argument, as evidenced by the general practice in collective bargaining to confine any agreed outcomes to current employees.

To do otherwise one would expect a trade union to seek to have any such retrospection made specifically applicable to retired employees and in this case that was not done. Indeed, it is probably never a feature of the collective bargaining process to do so. The respondent has effectively addressed this industrial relations aspect of the complaint.

However, while that may be an aspect of the matter it is not the substance of the complaint which is made under the Payment of Wages Act.

The respondent has set out the requirements of Section 6 of the 1991 Act above and submitted that;

‘To ground a successful complaint under Section 6(1) the Payment of Wages Act 1991, a complainant must establish that there has been an unlawful deduction contrary to Section 5 of the Act.’

It further submitted that there has been no deduction or non-payment of any monies properly payable to the complainant in the course of his employment with Aer Lingus and during the cognisable period of this claim.

Turning first to the preliminary issue related to time periods the complaint was submitted to the WRC on August 14th, 2024, the complainant having retired the previous September. The nearest, in time, of the pay increases was on October 1st, 2023. There had been earlier applicable dates in January and July 2023.

Quite clearly, this is well outside the six-month time limit and no argument was made that would meet the ‘explain and excuse’ test to be applied in extension of time applications under the Acts, formulated by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338 and in other cases.

Accordingly, I find that the complaint has not been made within the required time limits.

And while it is not necessary for me to do so, in my view a claim such as this, even if made within the time limits would not meet the test either of being ‘properly payable’ as wages to the complainant, for reasons that are most clearly set out in A Government Department and A Worker PWD 1645 which appears in the respondent’s submission above.

“The issue to be decided by the Court in this preliminary matter is whether, at the material time, a rate of pay was properly payable to the Appellant higher than that which was actually paid to him. If no such rate of pay was properly payable to the Appellant at the material time then the Act at Section 5(6) can have no application insofar as the pay received by the Appellant was in accord with that which was properly payable to him.”

For these reasons complaint CA-00065396-001 is not well founded.

For the reasons set out above complaint CA-00065396-001 is not well founded.

Wages; retrospection.