INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
UNIVERSITY COLLEGE CORK
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Overtime to be included in pension
2. The worker concerned was employed by the College for 21 years, prior to his retirement in 1999. He was employed as a general attendant/security services operative for 17 years, and for the last 4 years he worked as a departmental operative in the Reception Centre. The Union claims that part of the work in the Reception Centre involved a commitment to working public holidays and College holidays on a rostered basis, including Christmas Day, St. Stephen's Day, etc. The Union regards this as regular and rostered overtime, and seeks to have it included in the worker's pension. Management's view is that there is no provision in the Pension Scheme to allow for concession of the Union's claim.
The dispute was referred to the Labour Relations Commission and a conciliation conference took place in November, 1999. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 18th of February, 2000, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 24th of May, 2000, in Cork.
3. 1. The worker was told when he took the job in the Reception Centre that he would have to work the public and College holidays. It was regular and rostered overtime, and he did not miss one holiday in the 4 years.
2. In a similar case involving the College (LCR15854), the Court found that "a correct interpretation of the Pension scheme allows for the inclusion of the permanent allowance paid to the claimants as remuneration for pension purposes"
3. Allowances are included in pensionable salary provided they are permanent. Public holidays and College holidays were a permanent feature of the worker's duties and did not fluctuate. As such, they should be included in his pension.
4. 1. The payment made to the worker for working the various holidays was, in effect, overtime. The College's pension scheme specifically excludes overtime within the definition of pensionsble salary.
2. At no time was the worker given any indication that overtime worked on public holidays would be included in his pensionsble salary. There was no contractual obligation on him to work every public holiday.
3. The claim is in breach of the provisions of both Partnership 2000 and the Programme for Prosperity and Fairness.
The Court has given careful consideration to all aspects of this claim. The Union is seeking the inclusion of "regular and rostered" overtime in the calculation of pensionable salary. At the Court hearing, it was accepted by the Union that the work involved was classified as overtime, worked on a regular and rostered basis. The UCC pension scheme specifically excludes overtime payments from pensionable salary, and it was stated to the Court that overtime has not been part of pension calculations in any of the Universities. The H.E.A., which controls and interprets U.C.C.s pension scheme, has clarified to the College that overtime pay is to be excluded from pension calculations.
The Court accepts that since his promotion, the claimant did work all Public Holidays or their equivalent, which fell within his normal 5 day week roster, even though there is no recorded evidence on the extent of his obligation to do this.
It would appear that the original Pension Scheme Rules (approximately 1966) are unclear in this matter, in that reference is made by way of example to the exclusion of 'fluctuating' payments such as overtime. These rules do not make reference to the inclusion or exclusion of fixed overtime. However, the explanatory summary of 1976, and, in particular, the explanatory booklet of 1993, is quite explicit in ruling out overtime.
On the basis of the evidence presented, the Court finds that the claim does not succeed.
The Court recommends that situations such as this should be clarified during the course of employment, so as to avoid a repeat of any ambiguity as has occurred in this instance.
Signed on behalf of the Labour Court
23rd June, 2000______________________
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.