PWD2468

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043607 (CA-00053880-001)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991.  The appeal was heard by the Labour Court on the 11th October 2024 in accordance with Section 44 of the Workplace Relations Act, 2015. 

The following is the Court's Decision:

DECISION:

1.   This is an appeal by Catherine Martin of an Adjudication Officer decision made under the Payment of Wages Act 1991 (“the Act”) in which the Adjudication Officer found that the complaint was not well founded.

2.   In this Decision the parties are referred to as they were at first instance. Hence, Catherine Martin is referred to as “the Complainant” and the Department of Education as “the Respondent”.

Background

3.    Much of the background to the within complaint is not in dispute. The Complainant is a qualified primary school teacher. She works as a teacher in St Michael’s and St Patrick’s National School, Cootehall, County Roscommon.

4.   In 2007 the Complainant was seconded to the position of Director at the Education Centre of Carrick-on- Shannon, Co. Leitrim, while remaining a permanent employee of St Michael and St Patrick’s National School. She was entitled under the terms of her secondment contract to receive an allowance payable to Directors of Education Centres which was fixed at the 10th point of the pay scale of a school principal teacher by an agreed report confirmed in Circular 1/99. The established practice at that time was that Directors of Education continued in their roles until retirement.

5.    In 2017, statutory instrument 394/2017 imposed a five-year limit on periods of secondment to the position of Director of Education. As a result, the Complainant was compulsorily redeployed to her substantive post as a teacher.

6.   A claim for the retention of the allowance payable to Directors of Education Centres was lodged on behalf of the Complainant (along with four other impacted individuals) with the Teachers Council. The claim for retention of the allowance was upheld, and the outcome of an adjudication process implemented with effect from 1 September 2018. As a result, the Complainant retained the allowance having returned to her substantive teacher role.

7.   General pay increases under national pay agreements apply to her allowance.

8.   With effect from 1 February 2022, arising from sectoral bargaining provisions under the public service pay agreement Building Momentum – A New Public Service Agreement 2021-2022, an increase was applied to the allowance paid to principals in the primary school sector only. No increase was applied to allowances paid to principals in the post primary sector.

9.   The Building Momentum Agreement provided for the equivalent of a 1% increase in annualised basic salaries to be used as a Sectoral Bargaining Fund or a general pay round increase on 1 February 2022. The Irish National Teachers’ Organisation (INTO), representing teachers at primary level, opted to use the Sectoral Bargaining Fund to settle certain outstanding claims, including a legacy benchmarking claim from 2007 to increase allowances for principals in the primary school sector.  Circular 0017/2022 reflects the agreed outcome in relation to those sectoral bargaining claims.

10.   The refusal of the Respondent to apply the increase applied to principals in the primary school sector to the Complainant forms the basis of her complaint. The value of the increase in the allowance for the cognisable period of the within complaint is calculated as €2301.297 gross.

Summary of the Complainant’s position

11.   The wages properly payable to the Complainant is the allowance specified in the Agreed Report 1/99 as an allowance equivalent to the 10th Point of the allowance payable to Principals.

12.   The relevant part of that Report states as follows:

“With effect from the 1st of September 1996, all Directors of Education Centres will be paid an allowance equivalent to the tenth point of the range of allowances paid to Principals”.

13.   The Complainant’s contract while seconded was clear at clause 1.2 that:

“The salary and allowances payable for the position of Director will be your current salary in your teaching post along with all Qualification allowances currently payable. In addition a pensionable allowance equivalent to the 10th point of the Principal’s allowance will be payable for the duration of the secondment”

14.   The Complainant continued to receive the allowance payable to Directors of Education Centres after the secondment ended on foot of an adjudication report in 2018. This crystallised her contractual term as continuing post her return to her primary school. The Complainant was expressly captured and comprehended by the Adjudicator’s findings in 2018, which determined that she retained a contractual entitlement to the allowance past her return to her substantive post.

15.   The Adjudicator Daniel Murphy found that: -

At Para 19: “The remuneration of a Director was not based on a separate pay rate. It was explicitly linked to a category of principal teacher allowance.”

At Para 106:“The relationship between the allowance paid to the directors of education centres and the principal’s allowance is and has consistently been so close that they have, in effect, an identity and the existing rules on retention of allowances which have been held for more than five years should apply.”

At Para 108: “Consequently, my finding is that the five people concerned in the instant case are entitled to be treated in precisely the same way as a principal is treated in respect of the retention of a principal’s allowance when the allowance has been held for over five years with effect from the date that they ceased to be directors and returned to schools. It should be clearly understood that this finding is dealing with a unique situation as regardsallowances because of the identity of the allowance paid to directors with the principal’s allowance and cannot be used as a precedent for other situations”.

16.    The findings of the Adjudicator are sufficiently precise and unconditional to give her legal rights.

17.    There was no distinction in 2018 between the principal’s allowance for primary and post primary sector schools. However, the allowance was clearly linked to the type of school the director was seconded from, given the absence of any distinction in the contract of employment.

18.    Following the benchmarking award in February 2022, provided for in Circular 0017/2022, a divergence emerged between the allowance paid to principals in the primary sector and post-primary sector. The allowance for principals in the primary sector increased.

19.   When the INTO queried this matter, the Respondent advised that the Director of Education Centre Allowance was not included in costings for the benchmarking claim. As a result, the Complainant did not receive the uplift to the 10th point of the principal’s allowance scale at primary level, even though the value of her allowance is at that rate.

20.   The Complainant is currently in receipt of an unlawful allowance at the rate of the 10th point of the post-primary allowance in the post primary sector.

21.   The Respondent made a unilateral decision to link the allowance to the 10th point of the post-primary scale for those taking up director positions in 2018 and thereafter which is reflected in the advertisement and subsequent contracts issued to directors. However, the Complainant is not encompassed by arrangements that apply to those appointed as Directors post 2018.  She was not a director at that time and, as a pre-2018 director, the Complainant is entitled to receive the same increases awarded to principals.

22.   The Complainant’s allowance no longer equates to the value of the 10th point of the principal’s allowance in the primary sector. It is inequitable for a primary school teacher to be in receipt of a post primary allowance.

23.   The Complainant is currently paid an allowance of €28,914 which equates to the 9th point on the scale in the primary sector. The Complainant is entitled to the 10th point of the principal’s allowance scale at primary level. Since the lodging of the claim, there were three further uplifts which have been unlawfully deducted from her wages in breach of section 4 of Act.

Summary of the Respondent’s Position

24.   The increase applied to the principal teachers allowance at primary level with effect from February 2022 is not properly payable to the Complainant. It is not a statutory entitlement.

25.   The Complainant is in receipt of a Director of Education Centres Allowance. She retained that allowance on a personal basis following the ending of her secondment in 2017. The Director of Education Centres Allowance was fixed at the 10th point of the pay scale of a school principal teacher by an agreed report confirmed in Circular1/99.  It is a separate and distinct allowance to the Principal Teachers Allowance.

26.   The Complainant is paid the correct rate properly payable to her under salary payment rules, as determined by the Minister pursuant to statutory powers. Pursuant to Section 24 of the Education Act 1998 (as amended), the Minister for Education, with the concurrence of the Minister for Public Expenditure & Reform, has authority to determine the terms and conditions of employment for teachers paid from monies provided by the Oireachtas. Such terms & conditions are statutorily underpinned by Section 24 of the Education Act (as amended). Department publications/circulars setting out those terms and conditions are thereby instruments made under statute. These terms & conditions apply to all such teachers, including the Complainant.

27.   Terms and conditions of teachers employed in State funded teaching posts are formulated at the Teachers Conciliation Council (TCC), which forms part of the Scheme of Conciliation and Arbitration for Teachers, and are of general application to all teachers, including the Complainant.

28.   Pay for public servants is governed by a framework of public service pay agreements, which are collective agreements between the Government and the Public Services Committee of the Irish Congress of Trade Unions. It is normal industrial relations practice in the public service that the decision of the trade union recognised as holding representative rights for a particular grade or sector will determine the position for all relevant staff in that grade/sector. This context does not allow for acceptance or rejection of collective agreements by staff on an individual basis.

29.   Agreed terms and conditions are set out and communicated via circular letter. The use of circulars is a long-established practice within the Department of Education. It is not tenable, or accepted practice, to negotiate either with individual employees, or employers.

30.   The Director of Education Centres Allowance at the centre of this complaint exists by virtue of a collective agreement, concluded under the auspices of the TCC in Agreed Report 1/99. That report sets the rate as being equivalent to the 10th point of the range of allowances paid to principals but makes no distinction between the principals in the primary or post primary sectors. At the time of the Agreed Report 1991, the 10th point on the primary and post primary scales were identical.

31.   The Complainant continues to receive the secondment allowance not by virtue of any contractual term but by virtue of an industrial relations process, namely the complaint lodged to the Conciliation and Arbitration Scheme for Teachers Council and the adjudication outcome in 2018 that followed.

32.   The reference in the terms of the secondment contract to the Director of Centre Allowance being “equivalent to the tenth point of the range of allowances paid to principals” does not mean that the Complainant was at any time in receipt of a Principal’s Allowance. The allowance is a separate and distinct allowance which is paid to Directors of Education Centres for carrying out the duties of that role and while aligned in value is not related to carrying out duties as a primary school Principal. The Principal Teachers Allowance is based on the number of authorised teaching posts allocated to the school.

33.   The complaint is based on the erroneous premise that the Complainant is entitled in law to an increase applied only to primary school principals, which was an increase specifically negotiated by her Trade Union, INTO, under the Building Momentum 2021-2022 sectoral bargaining fund. This was not a general round increase, and her allowance was not included in the negotiations or costings by INTO. The outcome of this sectoral bargaining created a divergence between the allowance payable to primary and post primary school principals. The Complainant is not entitled to seek to rely on and receive the benefits of collective bargaining processes that benefit her and then seek to reject others on an individual employee basis when aspects of it doesn’t suit.

34.   The Director of Education Centres Allowance remains equivalent to the 10th point of the Post Primary Principal’s allowance.

35.   The Complainant suggests that as she is from a primary school background that the allowance should be interpreted as being the value of the Primary Principal Allowance. This suggests that Directors who came from a primary sector receive a higher allowance than those from other sectors for carrying out the same role of Director which is not equitable. The secondment contract did not link the payment of the Complainant’s allowance to the allowance payable to primary school principals.

36.   No deduction within the meaning of the Act can occur unless the Complainant can first prove the wages sought are properly payable to her.

37.   The Complainant always has been paid the Director of Education Centres Allowance and has received all general increases made to that allowance. There is only one allowance as published in pay Circulars relating to this role.

38.  The Complainant has no entitlement, contractual or otherwise, to payment of the principal teacher’s allowance.

The Applicable Law

39.   Section 5 of the Payment of Wages Act 1991 provides in part as follows:

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless–

(1) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(2) 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

(3) in the case of a deduction, the employee has given his prior consent in writing to it.

40.   (6) Where—

(1) 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), or

(2) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

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.

Deliberations and Findings

41.   The first matter for the Court to determine in assessing a complaint under the Payment of Wages Act is to ascertain what wages, or in this case what allowance, was properly payable during the cognisable period for the complaint. Having established that matter, the Court then needs to ascertain whether there was a shortfall in the proper payment and, if that was the case, whether the shortfall arose for one of the reasons set out in section 5(1) above.

42.   The Respondent argues that her entitlement is to the Director of Education Centre Allowance which she currently receives, whereas the Complainant argues that her contractual entitlement is to the 10th point of the range of allowances paid to primary school Principals.

What Amount is Properly Payable?

43.   The Director of Education Centre Allowance derives from Agreed Report 1/99 (confirmed in Circular 1/99) which states that “With effect from the 1st of September 1996, all Directors of Education Centres will be paid an allowance equivalent to the tenth point of the range of allowances paid to Principals”. 

44.   The allowance was confirmed to the Complainant in her secondment contract which provided for payment of “a pensionable allowance equivalent to the 10th point of the Principal’s allowance”.

45.   The secondment came to an end in 2017 and a claim for retention of the allowance was subject to an adjudication process.

The Adjudicator’s report and findings

46.   The Adjudicator’s report defined the matter at issue at the outset as: Retention of Allowance paid to Directors of Education Centres on compulsory re-deployment to teaching having served more than five years as Directors.  This is stated again at paragraph 106: I am persuaded that the issue for adjudication concerns the application of the set of existing rules for the retention of an allowance after having held it over five years rather than a claim for some new condition of employment with increased costs.

47.   In his findings at para 97 the adjudicator stated: In my mind there is no doubt that the relationship between the Director’s Allowance and the Principal’s Allowance is so close that the five people involved in the issue in this adjudication and who are being compulsorily removed from their positions against their will should be treated in exactly the same way as regards the retention of the allowance as a person who has held a Principal’s allowance for over five years and who ceases to be a Principal against his/her will.

48.   At para 108 he concluded: Consequently, my finding is that the five people concerned in the instant case are entitled to be treated in exactly the same way as a Principal is treated in respect of retention of a Principal’s allowance when the allowance had been held for five years with effect from the date that they ceased to be Directors and return to schools.

49.   The Respondent accepted that adjudication outcome and has at all times complied with it.

50.   The Respondent contends that the import of that finding is that the Adjudicator determined that the Director of Education Allowance be retained by those compulsorily stood down.

51.   The Complainant contends that the findings confirm that the Complainant is entitled to be treated in precisely the same way as a principal is treated in respect of a Principal’s allowance when the allowance has been held over five years with effect from the date that they ceased to be Directors and return to school, and that the import of the finding is that she is entitled to any point 10 increases in the allowance paid to primary school Principals.

52.   The allowance paid to principals at primary and post-primary levels remained the same until February 2022 when agreement was reached on a legacy benchmarking claim that resulted in an increase in the allowance paid to principals in the primary school sector only.

53.   The Court does not accept that the Complainant can rely on the secondment contract to establish a contractual entitlement to the 10th point of the range of allowances paid to primary school principals as the secondment agreement terminated on the transfer of the Complainant back to her teaching position in 2017. Once the secondment ended, the Complainant no longer had a contractual entitlement to be paid the secondment allowance. Even if the Court is wrong in this finding the secondment agreement did not expressly link the payment of her allowance to an allowance paid to primary school principals. The Complainant argues that this can be inferred into the contract. The basis for such a presumption is that it is something so obvious that it goes without saying. That is not the position here.

54.   The Complainant contends that she is contractually entitled to this increase on the basis that the principal’s allowance means the allowance paid to a primary and not a post-primary school principal and the failure of the Respondent to apply the increase to her allowance, as applied to primary sector principal teachers, amounts to an unlawful deduction under the Act. She contends that the allowance was clearly linked to the type of school the director was seconded from, given the absence of any distinction in the secondment contract of employment.

55.   The Court does not accept the assertion that as the Complainant is based in a primary school the allowance payable to her should be inferred as being the value of the allowance paid to primary level principals, which would result in different payments to Directors of Education Centres, who carry out the same role, based on whether they came from a primary or post primary school.

56.   The Complainant’s entitlement to payment of the allowance derives from the acceptance by the parties of the findings of the Adjudicator which addressed a claim for retention of the Director of Education Allowance. That allowance was and continues to be a fixed allowance payable to all Directors at the same rate regardless of the nature of the school (primary or post-primary) that they come from. That is the extent of the allowance properly payable to the Complainant.

57.   The Adjudicator did not in his findings expressly link the payment of the allowance to an allowance paid to primary school principals.

58.   That outcome of the adjudication process was accepted and implemented by the Respondent with effect from 1 September 2018.

59.   The difference between the allowance paid to the Complainant and the allowance paid to the primary teacher principals arises solely from the sectoral bargaining agreement concluded in 2022.

60.   The INTO did not include the Director of Education Centres Allowance as part of their claim or costings for legacy benchmarking claim from 2007 relating to primary school principals. As a result, the Complainant was not party to the agreement concluded to increase the allowance paid to primary school principals. In the view of the Court, the relevant circulars in 2022 and 2023 correctly limited the payment of the effects of benchmarking award to School Principals in that sector.

Finding

61.   The Court finds that the Complainant has not established that the increase applied to principal teachers in the primary sector with effect from 1 February 2022 under the sectoral bargaining element of the Building Momentum Agreement was properly payable to her.

62.   It follows that the complaint under the Act that the increase applied to principal teachers in the primary sector was unlawfully withheld from the Complainant is not well founded.

63.   The Court finds that the wages properly to the Complainant were fixed in 2018 as a result of the Adjudication Report which addressed her claim for retention of a Director of Education Centres Allowance when she was compulsorily removed from the role. The Complainant’s wages thereafter were determined by the amount payable to Directors of Centres and not directly with the primary school principal grade.

64.   The decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Katie Connolly
ÁM	______________________
4th December 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Áine Maunsell, Court Secretary.