INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Dispute regarding clawback on spouses' and childrens' scheme.
2. The worker joined AnCO (now FAS) in April 1974. He had previously been employed by Bord na Mona. His service with Bord na Mona was 14.063 years and was transferable for pension purposes. FAS claims that the worker was reminded in early 1995 that he would be required to pay a clawback from his retirement gratuity of 14.063 of his pensionable salary. The clawback refers to the transfer from Bord na Mona, for which no spouses' and childrens' contributions were made. The dispute concerns the method of payment of the clawback. The worker wishes to pay it back as per Clause 13.5 of the FAS Closed Spouses' and Childrens' Scheme which states:
"At the discretion of FAS and subject to conditions specified by it,a member may elect to pay, over a period of twelve months beginning on a date specified by FAS, being a date not earlier than the date of election, additional contributions equal in each case to the amount of the periodic contributions payable in respect of that period .....".
The worker wrote to the pensions and insurance department in June 1995 to have the clawback paid at the pay rate that applied at the time of his joining AnCO in 1974. FAS did not agree to his request. During discussions between the parties, FAS referred to a Labour Court Recommendation, No. 15308 which, it claims, supports its position in not implementing Clause 13(5).
The Union referred the case to the Labour Court on the 10th of September, 1997, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 5th of November, 1997. The worker agreed to be bound by the Court's Recommendation.
3. 1. The non-application of Clause 13(5) is against natural justice and militates against a worker who has given 23 years service. It will cost the worker a considerable sum if the clawback is taken from his lump sum rather than being applied as per clause 13(5).
2. The worker was not aware, from any information given to him by FAS, that the clawback of 1% for each reckonable year had not been paid. He only became aware in 1995, following a presentation on pensions given to staff. The FAS spouses' and childrens' pension scheme states that " a deduction may be applied to the lump sum benefit to meet the cost of unpaid years at a rate of 1% of returning in respect of each such year". LCR No.15308 does not refer to staff who had service with another organisation, and so does not refer to the worker concerned.
4. 1. In 1987, the worker was supplied with details of potential voluntary early retirement (VER) benefits which referred to the clawback and gave details of the amount that would be deducted from any benefits paid. The issue was again raised with the worker in 1995. The 1983 draft AnCO scheme contained a similar clause to clause 13(5) but it was never applied by AnCO. The FAS scheme does not provide a facility for the worker to pay the clawback on the basis of his salary at recruitment to AnCO in 1974. The Department of Finance would not approve such a facility. Concession of such a facility would create a serious precedent in FAS and in the public sector. In LCR No. 15308, which dealt with a similar case, the Court did not recommend concession of the worker's claim.
The Court, having considered all the information presented, does not recommend concession of this claim.
Signed on behalf of the Labour Court
17th November, 1997______________________
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.