Worker

Employer

Anonymised Parties

A Ganger

A Local Authority

Representatives

Jay Power SIPTU

 Keith Irvine LGMA

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001530

12/07/2023

The claimant was employed as a Ganger with the respondent from the 1st.March 1979 to the 26th.June 2020.

He was seeking a review of his pension calculations to take account of compulsory , regular , rostered overtime .

The respondent submitted that the complaint was out of time and that there was no jurisdiction to investigate the complaint. The respondent further contended that the claimant ‘s overtime was not mandatory and that consequently it could not feature in the calculation of his pension entitlements.

 The claimant’s representative submitted as follows :

Adjudicator the case before you today ADJ-00046824 regards the Complainant, and the  Council,  the respondent, and the matter of the inclusion of Compulsory, Regular & Rostered Overtime in his pension calculations, appendix 1 - WRC complaint form attached

. 2.Background :

 The claimant is a loyal long serving member of the Council . He was originally in the Council “Bins” section based in Depot A, then Depo Bt. Following a review of Bins services nationally the Council  moved to a “Wheelie bin” model in 1996. This led to a staffing reduction on each truck from 3 “Bin Lifter” Env. GO’s to 2 “Wheelie Bin Lifter” Env. GO’s. The reduction in GO levels led to a situation whereby Bins Env. GO’s where offered the chance of redeployment to alternate sections of  the  Council.

The claimant engaged with this process and wherein he met with the Senior Engineer of the Council Water & Drainage Section to discuss his move. At this meeting the Sen. Eng explained to staff interested in moving to Water or Drainage sections that they are expected to make themselves available for “on-call” and that they are expected to do “compulsory, regular, rostered overtime”. Throughout his working life with the respondent’s Drainage section the claimant has carried out this “compulsory, regular, rostered overtime” so that necessary works, repairs and upkeep of the Council’s drainage infrastructure can be maintained.

 In 2009 following the downturn in the Irish economy, SIPTU and the Group of Unions, including SIPTU, engaged the processes of the LRC to negotiate a “Restructuring Agreement”, a final document was agreed in June 2009, appendix 2 – GoU 2009 Restructuring Agreement attached, page 6 clearly sets out that 26 Saturdays will be required to be done, and which was reduced from 52.

Drainage

There will be no regular rostered weekday overtime and Saturday regular rostered overtime will be reduced to 26 Saturdays per year with effect from the 19th.June 2009.A buy out of 100%the nett annual loss averaged over the last 3 years will be paid by way of compensation. Outlined in appendix (i) is an example of how the roster will likely operate although regularity will be based on availability of staff.

 It further sets out what is expected of each area “Crew”, points 1 to 5 page 7. Further additions of an “on-call” system were set out, appendix 3 National Local Authority On-Call Agreement 2006 attached.

Again in 2009 it was stipulated that Drainage staff where expected to make themselves available to man the on-call service, which was deemed compulsory and which was explained as same to the claimant, in his role as the respondent’s drainage shop steward, by the Senior Engineer. It was further emphasised that staff could only access the overtime at weekends if they committed to the being on the “on-call roster”. In short it was clearly implied that “on-call” and “overtime” were clearly linked at where necessitated as compulsory to meet the Council’s Drainage operational requirements.

Circular CLS 12/91, appendix 4 Circular CLS 12/91 attached, sets out the criteria for reckon ability of “pensionable overtime” It is widely known and acknowledged that due to the functions and running of the Coumcil’s  drainage services that many works have to be carried out at weekends and/or outside of normal business hours. This highlights that two of the main tenants of the Circular El 12/91 were met immediately by the complainant and which the Council should acknowledge. Section 4. (b) and Section 4. (c) outline

 (b) was work of a regular and recurring nature (i.e. that the particular officer or employee was required to perform the duties during specified hours on specified days); and

 (c) was work of a kind which could only be performed outside of, and in addition to, the normal hours of work of the grade to which the officer or employee belonged.

 Further, since 2009 the complainant had been detailed approx. 26 Saturdays per annum for essential works across the Council’s drainage services. The very nature of running, upkeep and maintenance of the Council’s drainage infrastructure requires highly skilled and properly qualified staff to maintain. The specific nature of their role does not lend itself to “optional” choices of maintenance for the respondent, these works must be carried out. The very nature of the compulsory work is proven on the basis that numerous previous retirements, 7 in total, of “Council drainage inspectors” of the Council’s Drainage section Depot C, who worked the same roster and alongside the complainant, were afforded inclusion of the same overtime that he  worked in the years which were utilised for his final pension figures.

 SIPTU would highlight Labour Court decisions LCR21463 SIPTU v LC & CC on Regular, Rostered Overtime Pensionability, appendix 5 LCR21463 SIPTU v LC & CC re. R&ROvertime Pensionability attached, and LCR21997 SIPTU v LC & CC re. Regular, Rostered Overtime Pensionability, appendix 6 LCR21997 SIPTU v LC & CC re. R&ROvertime Pensionability attached, and WRC adjudication decision ADJ-00000524 - Pensionability of Regular Rostered Overtime, appendix 7 ADJ-00000524 - Pensionability of Regular Rostered Overtime attached, which have shown that natures of works lends to the compulsory element further supported by the basis that staff have to inform local management that they would be unavailable on certain dates & weekends so that works could then be scheduled around this. The union position is that the works in question have historically been carried out on weekends due to the essential nature of the maintaining & upkeep of the drainage infrastructure and continue to be done so. SIPTU would further contend that the necessitation of the weekend works is not down to staff shortages so again meets a further tenant of Circular CLS 12/91 3. Unions position

 It is the SIPTU position that the Council EWCC and redacted HR have erred in their decision not to include the regular rostered overtime in the complainant’s final pension figures. The very nature of the works meets the criteria laid out in Circular EL 12/91 in that the overtime “was part and parcel of the workers employment” was “not optional”; was “work of a regular and recurring nature”; was “work of a kind which could only be performed outside of, and in addition to the normal working hours”; and was “not occasioned by staff shortages”. The Council have acknowledged the overtime worked by the claimant over his working life with the Council and have never contested the amount of overtime that is necessitated. It is the SIPTU position that this overtime has met the criteria as laid down in Circular EL 12/91, this is supported by Labour Court Recommendations and on the basis that previous staff, and the most recent the Council’s Drainage Inspector, enjoyed the benefit of inclusion of the very overtime in question in their final pension calculations.

 4. Redress:

As a redress SIPTU on behalf of the claimant are seeking that the claimant’s final pension figures are re-calculated to include the Saturday overtime worked by him. We ask that all outstanding monies, both weekly and as part of his gratuity, are reimbursed to the claimant from the date of his retirement. This adjudicator is the case before you today and we ask that you find in the claimant’s favour.

The union submitted that the respondent was given an opportunity to object to participating in an IR hearing and did not do so. It was submitted that this was disingenuous on the Council’s part. It was further submitted that the complainant took up employment as Relief School Warden with the respondent   in March 2021 and that consequently jurisdiction applied. It was further contended that reasonable cause applied with respect to an extension of time as the claimant had to first utilise internal procedures and it was the 18th.March 2021 before he was advised of the respondent’s final position on the matter when he was notified of the rejection of his claim by the Head of HR.

The union submitted a list of named colleagues of the claimant – who it was argued got recognition for equivalent overtime in their pension calculations.

1.1.       The respondent’s representative submitted as follows :

1.2.        this submission is made on behalf of a local authority -  “the Council” in respect of a complaint by “the claimant” under section 13 of the Industrial Relations Act 1969 . The complaint was submitted to the WRC on 12th July 2023. The complaint is stated as:

“SIPTU and the claimant are seeking adjudication on the matter of inclusion of compulsory, regular, rostered overtime in the claimant’s pension calculations. SIPTU have engaged with the Council on this matter without resolution. The claimant has continually worked regular, rostered, compulsory overtime and it is SIPTU’s and the claimant position that this overtime should be factored into the claimant’s pension calculations.”

2.           Preliminary Issues

2.1.       The Council would raise a preliminary issue where the claimant has been retired from employment with the Council since June 2020.

2.2.       The Industrial Relations Amendment Act 2015 section 45 states:

Time limit in relation to trade dispute where retired worker is party to dispute

45. The Act of 1990 is amended by the insertion of the following section after section 26:

“26A. (1) Notwithstanding any other provision of this or any other enactment, but subject to subsection (2), an adjudication officer or the Court shall not investigate a trade dispute to which a worker who has ceased to be employed by reason of his or her retirement is a party unless—

(a) the dispute was referred to the Commission for conciliation within a period of 6 months from the date on which the worker’s employment ceased, or the date on which the event to which the dispute relates occurred, whichever is the earlier, or

(b) the dispute was referred to an adjudication officer or, as the case may be, the Court within the period referred to in paragraph (a).

(2) Notwithstanding subsection (1), an adjudication officer or, as the case may be, the Court may extend the period referred to in that subsection by a further period not exceeding 6 months where the adjudication officer or the Court is satisfied that the failure to refer the dispute within the period referred to in subsection (1) was due to reasonable cause.

(3) The Commission or the Court shall not investigate a trade dispute to which a worker referred to in subsection (1) is a party where the dispute is subject to investigation by the Pensions Ombudsman.”.

2.3.       The Council would raise this preliminary issue where the WRC Complaint was submitted on 26th August 2022 and the claimant retired on 26th June 2020. As such the “shall not investigate” this trade dispute. The Council would ask the Adjudicator, in these circumstances, to dismiss the complaint where there is no jurisdiction to hear it.

3.           Background

3.1.       The Claimant commenced employment with the Council in September 1978 as a general operative, he retired on 26th June 2020 from position of Ganger in the Environmental, Water & Climate Change directorate per his Contract of Employment

3.2.       The Claimant was a member of the Local Government (Superannuation) (Consolidation) Scheme 1998 to 2014.

3.3.       The claimant retired from employment with the Council in on 26th June 2020 and his pension calculations were based on this.

3.4.       The Claimant alleges that Saturday overtime worked during his employment with the Council should have been reckonable for pension purposes when he retired from the Council.

The Council’s Position

3.5.       The Council would in the first instance refer to its preliminary position regarding the current complaint. Without prejudice to this point, the Council would provide the following position.

3.6.       The claimant retired from employment with the Council in on 26th June 2020.

3.7.       In July 2020, after retiring, the Claimant requested that Saturday overtime worked in Drainage Section be included as part of his pensionable pay when calculating his retirement benefits.

3.8.       The Director of Services for Environmental, Water & Climate Change was asked to review this in July 2020 and considered the pension ability of the overtime in accordance with Circular 12/ 1991. The overtime was deemed not pensionable under the Circular on the basis that it was not compulsory.

3.9.       While the Council are bound by the relevant circulars in relation to what is reckonable for pension purposes and are satisfied the Circular was correctly applied to the claimant.

3.10.    The Council advised the Claimant by letter dated 23rd July 2020 of this decision and of their right to request an internal review of this decision under the Pensions Ombudsman’s Regulations 2003 and supplied the form to be completed and returned, stating:

“You made a request for Saturday overtime in the Drainage Section to be included as part of your pensionable pay when calculating superannuation benefits at retirement.

The Director of the Environment, Water and Climate Change Department has rejected that request on the grounds that it was not compulsory.

You can request an internal review of this decision under the Pensions Ombudsman’s Regulations, 2003.”

3.11.    The Claimant submitted a completed appeal form on the 13th August 2020 to the Head of HR under the Council’s internal dispute resolution stating:

“…I transferred into the bin section and while I was there was also required to work Saturdays to cover collections which would have fallen on Bank or Public Holidays as well as some Saturdays in landfill sites or Graveyards as needed.

Due to the introduction of wheelie Bins, I moved back to Direct Labour under Mr.W  and again had to work every second Saturday as I was serving as a shop steward and the inconvenience it caused, I then moved into the Drainage section based in  Depot C  as these were the staff I was representing.

Because Drainage operates a 24-hour emergency service we are also required to work Saturdays and they go hand in hand with the on-call system so as you can see my entire working life with the Council…I have worked Saturdays as part of my working week and as such they should be regarded as regular and rostered overtime. Under various talks between Government and Unions…I am guaranteed 13 Saturdays a year often working many more than this…”

3.12.    Circular Letter S.12/91 is the relevant Circular that provides guidance in relation to pensionability of earnings, including the pensionability of overtime. This circular details the criteria for calculation purposes which must be fully met:

1)     Overtime must be part of the terms and conditions of employment or

2)     Overtime is not optional i.e., mandatory - an individual cannot refuse to work the overtime.

3)     Overtime is part and parcel of their employment.

3.13.    In addition, the Circular also provides that in order to be pensionable, the overtime must be both regular and rostered and the type of work done on overtime could only be done outside normal working hours. Overtime does not count for superannuation purposes if it is as a result of staff shortages or work volume and the pattern of work volume changed from time to time.

3.14.    The claimant’s overtime was not compulsory, and he could choose whether or not to do this overtime if he wished. Furthermore, there are on-call arrangements in place to cover emergency works outside normal hours.

3.15.    The Head of HR informed the Claimant by letter dated 18th March 2021 (Appendix 7) that having reviewed his case, she concurred with the original decision made by the EWCC Directorate to exclude requested overtime payments as reckonable for pensionable pay at retirement stating:

“…This overtime is not compulsory, and a staff member could choose not to do this overtime if he/ she wished, it was not compulsory. Furthermore, there are on-call arrangements in place to cover emergency works outside normal hours.

Since 2009, a Union Agreement is in place that staff can opt to work up to 26 scheduled Saturdays per year. There was a sample roster indicated on the agreement and it was noted that regularity would be based on availability of staff.

It is the advice of EWCC that this work was not deemed regular and recurring in nature in that you were not required to perform duties during specific hours e.g. for traffic management reasons.

…I have examined the Local Government (Superannuation) Consolidation Scheme, 1998 to 2014 and Circular letter S.12/91 in relation to the claim made. I also contacted Environment Water & Climate Change Directorate. This claim relates to overtime on a Saturday. Works carried out by the Water Services on Saturdays is as required on a priority basis, which may include unblocking sewers, repairing water mains and sewers, river and stream maintenance etc. There is no specific work schedule.

In addition, it should be noted that the overtime worked was not a requirement stipulated in the terms and conditions of your contract of employment and therefore was not deemed as compulsory. As outlined above, this forms a critical part of the criteria for overtime to be deemed reckonable for pension purposes. 

Accordingly, I concur with the original decision made by the EWCC Directorate to exclude requested overtime payments to be included as reckonable for pensionable pay at retirement. The overtime claimed for inclusion does not appear to fulfil the terms of Circular S.12/1991 which requires overtime to be regular, rostered and recurring.”

3.16.    The Head of HR also advised the Claimant if they wish to make a further appeal of this determination, they could contact the Pensions Ombudsman’s Office. This was not pursued by the claimant.

4.           Conclusion

4.1.       The Council would in the first instance refer to its preliminary position and ask for the complaint to be dismissed.

4.2.       Without prejudice to this position the Council would assert that there is no entitlement to the inclusion of this overtime for pension purposes, where it was deemed voluntary and was not regular, rostered, recurring and mandatory, as required by the Circular for the overtime to be pensionable. It is also the case that there is no reference to mandatory overtime requirements in the claimant’s contract of employment.

4.3.       As such, the Council would ask the Adjudicator to dismiss the complaint.

        The respondent did not accept the claimant’s contention regarding jurisdiction and submitted that since June 2020 the complainant could at any stage have referred the matter to the WRC ; it was further contended that there was no link between the instant complaint and the appointment of the claimant as a relief School Warden .It was submitted that the claimant was a Shop Steward and had the full assistance of his union in pursuing the matter. It was submitted that the complaint was not submitted within the requisite 6 months as required under the amendment to the Act and consequently jurisdiction did not apply.It was the practise of the Council to engage in IR referrals and to deal with any matters of jurisdiction at the hearing.

        The respondent did not accept that the comparator colleagues submitted by the union were appropriate and argued that they had to be distinguished from the claimant as their overtime had been mandatory, compulsory or involved supervisory duties. It was further submitted that there was no evidence of a reference to mandatory overtime  with respect to the claimant.

Appendix 1: WRC Complaint Form

Appendix 2: Industrial Relations Amendment Act 2015

Appendix 3: Contract of Employment

Appendix 4: Circular 12 1991

Appendix 5: Overtime Review 23.7.2020

Appendix 6: Pension Review Appeal 13.8.2020

Appendix 7: Pension Appeal Outcome 18.3.2021

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