Case Number: ADJ-00015754. Workplace Relations Commission.
| Docket Number | ADJ-00015754 |
| Hearing Date | 30 November 2018 |
| Date | 01 June 2019 |
| Year | 2019 |
| Court | Workplace Relations Commission |
| Parties | Employee of a Youth Service v Youth Service |
In accordance with Section 13 of the Industrial Relations Acts 1946 – 2015 and Section 16 of the Protection of Employees (Part-Time) Work Act 2001 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:The Complainant is an employee of a Youth Service. The Complainant is employed as ‘Youthreach Resource Workers’ to deliver tuition and undertake administrative duties on Youthreach Programmes. The grade of Resource Worker is a grade that had been nationally agreed for deployment in Youthreach Programmes (Second Chance Education for early school leavers) and the contract of employment is appended to Department of Education and Skills [DES] Circular Letter 12/03.
The Complainant is seeking adjudication under the following:
- Section 13 of the Industrial Relations Act, 1969 claiming that she has not been given access to the pension scheme available to other employees and she contends she has an entitlement to access the scheme as per other employees.
- Section 16 of the Protection of Employees (Part-Time) Work Act 2001 claiming that she has not been given access to the pension scheme available to a comparable whole-time employee. The Complainant works more than 20% of the hours of a comparable whole-time employee and contends that she is entitled to access the scheme.
The complaint in respect to Section 16 of the Protection of Employees (Fixed Term) Work Act, 2003 was withdrawn on the day of the hearing.
Summary of Complainant’s Case:CA-0020451
This Complainant commenced employment with the Respondent on the 1 July 2012 and works as a Youthreach Resource Person. The Complainant works 26 hours a week. The Complainant is seeking adjudication by the WRC under Section 16 of the Protection of Employees (Part-Time) Work Act 2001 and Section 13 of the Industrial Relations Act, 1969. The complaint in respect to Section 16 of the Protection of Employees (Fixed Term) Work Act, 2003 was withdrawn on the day of the hearing.
Details of the Claims:
Under the terms of the Service Level Agreement, and previous agreements related to the provision of a grant, the staff in the Respondents company on the Youthreach Programme must be paid at rates approved by the Department of Education and Skills and notified by the Education and Training Board, as appropriate, to include provisions for superannuation entitlements.
The Youthreach Pension Scheme is a defined pension scheme. The scheme is based on the provisions of the “Local Government Superannuation Scheme.” The Respondent set up the scheme in April 2000 in order to be in compliance with the Implementation of Youthreach Pay adjudication as advised to the Respondent by the Local Education Service on 11 May 1999.
Under the Pension Adjudication it was determined that: “Full time instruction staff in Youthreach will be pensionable under the conditions set out in the Local Government Superannuation Scheme. This is a co-ordinated pension scheme where full PRSI continues to be payable.”
The scheme is technically a private scheme with the Respondent as the employer, in the set-up of the scheme, the Respondent has previously stated in correspondence to members of the scheme, it was always intended that the scheme would mirror a public service scheme with the benefits defined to match those of the Local Government Superannuation Scheme. Furthermore, the funding of the “Employers portion” of the scheme is paid by the Respondent as the employer.
The Protection of Employees (Part-Time) Work Act was enacted in 2001 and the state implemented this legislation by allowing part-time staff working in Youthreach access to the relevant Public Service Pension Scheme. This was achieved through the issue of Circular Letter 04/01 Admission of Tutors in Youthreach Centres of the Education Sector Superannuation Scheme. The Complainant state the Respondent failed to implement this legislation and has been in breach of the legislation in relation to part-time staff for some time.
The latest grant agreement came into effect on the 24 March 2016 and since this point no new members have been admitted to the scheme.
In summary the decision to exclude part time members of staff from the scheme is in breach of one of more of a number of provisions in every case. The restriction is against the rules of the pension scheme, is inconsistent with the Youthreach Pay Adjudication, 1999 under which the scheme was set up in the first instance, is in breach of the Protection of Employees (Part-Time) Work Act, 2001 and is in breach of the Protection of Employees (Fixed-Term) Work Act, 2003.
Industrial Relations Act, 1969
The Complainant is seeking that she be admitted to the Respondents Defined Benefit Pension Scheme retrospectively, that she be given the opportunity to make contributions, at the same rate as those that have been made by current members of the scheme, to support a benefit under the scheme equal to that which would have accrued for their service from appointment to the Youthreach programme to date and that the employer make the required employers contribution for such staff members. The Complainants representative expects the Respondent would undertake the appropriate calculations for her and supply them to the Union for consideration by their financial advisors in advance of paying the relevant amounts into the scheme. The Union is additionally seeking compensation for the infraction of the complainant’s statutory right to when they requests to join the scheme which ensures the same treatment to full time employees.
Protection of Employees (Part –Time Work) Act, 2001
The Union holds the position that the Complainant had an entitlement under Section 9 of the Protection of Employees (Part –Time Work) Act, 2001 to be treated no less favourably than a comparable permanent employee. The Union contend that any given Youthreach Resource Person is an appropriate permanent comparator for the relevant claims. Nonetheless, the Union further contend that Mr. A is an example of a comparable permanent employee as per Section 7(2) and (3) of the Protection of Employees (Part – Time Work) Act, 2001. The Comparator is employed since 29 June 1998 as a Youthreach Resource Worker and works 37 hours a week. The Complainant and Mr. A (comparator) are and have been employed by the Respondent during the reference period for this complaint, and thus, satisfy the requirement of Section 7(2) (a) of the Act. The Union contend that the fact that the Complainant is contracted identically to Mr. A satisfies the requirement of Section 7(3) (a) of the Act as it unambiguous, and indeed contractually explicit, that the Complainant is employed to perform the same work and are interchangeable – indeed this interchangeability is a matter of fact and is overtly documented in both contract and practise.
Summary of Respondent’s Case:The Respondent, as per their submission of documentary evidence state that they are not the employer. The Respondent receive a grant from the Department of Education and Skills. The Complainant is paid via this grant. Minutes of a meeting held on 7 March 2018 between the Respondent and the Complainants Union state that CFO at the time stated that the pension issue has been consistently brought forward to the ETB by the Respondent, with the Respondent only signing the SLA having received a commitment from the CEO of the relevant ETB that he would address the matter with DES.
It was confirmed via evidence presented that the Respondent and the ETB entered into a grant agreement. Pursuant to this agreement the ETB are responsible for monitoring, reporting, inspecting and payment of the funding and the Respondent is responsible for managing each programme and ensuring that service targets are met. Under the Agreement the ETB must include the employer’s contribution to the pension in the grant to the Respondent. The ETB has sought to restrict access to the employee pension scheme by providing “this provision in relation to the pension costs relates to full time members of the Youthreach staff employed by the Grantee currently in the pension scheme.”
The agreement implicitly restricts access to the Scheme, not only for part-time employees, but also full-time employees who were not already members of the Scheme on 24 March 2016. No new member, full time or part time has been admitted to the Scheme since the commencement of the Grant Agreement.
The Respondent has raised this issue with this restriction during negotiations on the grant agreement and specifically on the basis that this restriction is against the rule of the pension scheme, is against the Youthreach Pay Adjudication 1999, under which the pension scheme was set up in the first place and would prevent opening the scheme to part time workers thus leading the Respondent to be in breach of the Part Time Workers Act.
The CEO of the ETB in his cover letter issuing the Grant Agreement noted as follows:
“Pension Provisions – with regard to the request from [the Respondent] that the pension provision be extended to include part-time staff...
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