ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00003112
| Worker | Employer |
Anonymised Parties | Electrician | Council |
Representatives | Brian Mc Avinue Connect Trade Union | Management |
Dispute(s):
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 - 00003112 | 10/09/2024 |
Workplace Relations Commission Adjudication Officer: Brian Dalton
Date of Hearing: 14/01/2025
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute(s).
Background:
Arising from the Financial Crash measures were brought in by the State in order to fund Defined Pension Benefits in Public Bodies in the future, arising from the significant Actuarial liability and projected cost to provide such benefits from current expenditure. The prescribed contributory contribution was to apply on all earnings. On or about 2019 arising from a collective process the contributions were calculated based on pensionable earnings only. In this Public Body, deductions on all earnings continued in error until 2021 when by agreement the deductions made in error were returned. This claim is brought based on what is alleged to be a unilateral decision not to recognise on call overtime hours worked for pension purposes, which can equate to about €14,000 a year. It is argued that the scheme provides for such payment as call out is mandatory and that these overtime earnings have been included in the past. The worker relies on a Department of Environment Circular Letter 12/91 at paragraph 4 that states Overtime for Superannuation calculations would be included where it was not optional. The Employer maintains that overtime for call out is optional as there is no mandatory requirement to make oneself available, it is entirely optional. As it is optional it cannot attract payment for pensions purposes. The matter has been referred to conciliation as it affect other workers as wel and no agreement was reached. The Employer maintains that this dispute is not properly before this Adjudicator as it affects a body of workers. The worker maintains that it is properly before the Adjudicator as it relates to an individual’s terms and conditions set out in the circular: 4.13: emergency call-out duties after normal working hours if requested by redacted Council The worker maintains that another worker who was identified received pension payments that included call out overtime for the calculation of his pension benefit. The Employer stated if that occurred it was in error as call out overtime is not mandatory, rostered or compulsory and is an inherent part of the conditions of service. The Employer further stated that this concession would affect many workers and therefore should not be adjudicated upon. The worker stated it should be adjudicated upon and be red circled to avoid any precedent. |
Preliminary Matter:
This referral is made under section 13 of the Industrial Relations Act 1969. A claim that affects a body of workers is not normally heard.
13.—
(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.
A question arises concerning an individual pension benefit and is it encompassed by section 13?
An Adjudicator cannot hear a dispute if it is connected to rates of pay of hours or times of work of, or annual holidays of, a body of workers. The Act does not mention Pensions. However, the Act does say other than a dispute connected with rates of pay; pensions are clearly related to rates of pay and if rates of pay attracting premium overtime rates are to be included in pension calculations. The intent of the legislator is to ensure that individual trade disputes do no undermine collective processes and in turn negatively affect the wider body of workers and their terms. On the plain reading of the Act as a pension entitlement is connected to rates of pay of a body of workers in this case and overtime earned when called out to respond to unforeseen circumstances, I decline jurisdiction.
While the claim is not about actual rates of pay, it is most definitely about a matter connected to rates of pay of a body of workers. That calculation in turn set a precedent for other workers.
The merit of the dispute is entirely separate from the standing of the Adjudicator to hear the dispute. I must decline to hear dispute based on the statutory provision that applies to claims about a body of workers.
Summary of Workers Case:
See preliminary matter. |
Summary of Employer’s Case:
See preliminary matter. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
|
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
The merit of the dispute is entirely separate from the standing of the Adjudicator to hear the dispute. I must decline to hear this dispute based on the statutory provision that applies to claims about a body of workers.
An Adjudicator cannot hear a dispute if it is connected to rates of pay, hours or times of work, or annual holidays of a body of workers. The Act does not mention Pensions. However, the Act does say other than a dispute connected with rates of pay; pensions are clearly related to rates of pay. The intent of the legislator is to ensure that individual trade disputes to be adjudicated upon, do not undermine collective processes and in turn negatively affect the wider body of workers and their terms or the industrial relations relationship. The mechanisms underpinning the resolution trade disputes are voluntary. Their purpose is facilitating the resolution of conflict and not to contribute to knock on claims. On the plain reading of the Act as a pension entitlement is connected to rates of pay of a body of workers and in this case, overtime earned when called out to respond to unforeseen circumstances, I decline jurisdiction.
Dated: 27th of January 2025
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Jurisdiction |