SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003
OFFICE OF PUBLIC WORKS
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr McGee
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Appeal Against Rights Commissioner's Decision Ft31571/04/Mr
2. The worker (one of two) was employed by the OPW as a General Operative / Light Equipment Operator on the 15th of May, 1999. Apart from a four-month lay off, from the 1st of November, 1999, to the beginning of March, 2000, he worked continuously up to the 8th of December, 2004, when his employment was terminated. The Union is claiming that the worker was employed on a continuous basis within the meaning of the Minimum Notice and Terms of Employment Act 1973 to 1991 for a total period of five years and seven months. He was issued with four contracts of employment in total and was assigned under each contract to the Athenry National Monuments and District area (the Union supplied a list of locations where the worker was employed. The last location where the worker was employed was Scattery Island). The Union claims that the worker was shocked to be made redundant as he had expected to be made permanent.
The case was referred to a Rights Commissioner and his decision was as follows (there was a second worker involved in an identical case):-
" In accordance with Section 14(2) of the Act, I hereby declare that these complaints were well founded. I now require the Office of Public Works to re-instate both claimants with effect from 9th December, 2004, on the same basis as if they had been offered contracts of indefinite duration in September 2003. For their part, the claimants should return to the employer any payments that they received from the employer deriving from the termination of their employment on 8th December, 2004.
The O.P.W. appealed the decision to the Labour Court on the 17th of October, 2005, in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003 (the Act). A Labour Court hearing took place on the 12th of April, 2006, in Galway.
3. 1. The Union's case concerns three Sections (8, 9,and 10) of the Act Section:
Section 8(2):"Where an employer proposes to review a fixed - term contract, the fixed - term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration at the latest date of renewals".
None of the contracts issued, including the last one issued on the 12th of September, 2003, informed the worker as per Section 8(2) of the Act and was an infringement of the Act .
2. Under Section 9(1) of the Act"where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year".
The worker was issued with four contracts in total and should have been issued with a contract of indefinite duration as per Section 9(3) of the Act.
Section 9(3) states"where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration".`
3.Section 10(1) Information on employment and training opportunities.
" An employer shall inform a fixed - term employee in relation to vacancies, which becomes available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees".The OPW has also infringed this Section of the legislation by denying our member an opportunity to secure permanent employment the same as other employees.
During September, and October, 2003, a number of employees were made permanent, a number of who commenced work a year after the worker commenced. The worker was not informed that these vacancies had become available and was not given an opportunity to apply.
4. 1. The purpose of the worker's contract was for the execution of a finite works project, funded by the Government under a special capital project. The contracts signed on the 28th of May and 12th of September, 2003, state"The purpose being to complete the schedule of works at Scattery Island as designated by the District Architect". Signed acceptance of contract forms were completed by both workers.
2. The contract of work was complied by the third quarter of 2004 but, following a request from local management, it was agreed to keep the two until the 8th of December, 2004. There was no possibility of extending this further.
3. The OPW did not act in breach of Section 9(1) and (3) of the Act. It is entitled to issue contracts in the manner that it did. It had "objective reasons" as provided for under Section 8 of the Act.
In this case the claimants were in the first instance employed by the respondent as General Operatives (Light Equipment Operator and Plant Operator A). They began work on 15th May 1999. The pattern of their contracts was as follows.Contract 1: 17th May, 1999, - 29th October, 1999, (issued 15th Sept, 1999). Their written terms and conditions of employment which were issued contemporaneously stated that they were to work in any location as directed by the Clerk of Works, Athenry District.
Laid Off: November, 1999 - March, 2000
Contract 2: 6th March, 2000 - 6th October, 2000 (issued 31st March, 2000). Their written terms and conditions of employment which were issued contemporaneously with their starting work stated that they were to work mainly at Scattery Island.
Contract 3: 6th October, 2000 - 30th November, 2001 (issued 22nd May, 2001). Again their written terms of employment which were issued contemporaneously contract stated that their were to continue working at Scattery island
Contract 4: 4th November, 2001 – to the 8th of November, 2004. In this contract which is the subject matter of this dispute it was again accepted that the complainants were to work at Scattery Island until such time as the works there were completed. The Complainants were not issued with written terms and conditions of employment until 2003, According to the complainant in September 2003 and according to the respondent in May, 2003. The written terms and conditions confirmed that the complainants contracts had commenced in 2001 and were to continue until the completion of work schedule at Scattery Island. Notice of Termination was given to the complainants in November, 2004 and their employment finally ceased on 8th December, 2004.
The claimants contended that by failing to offer them contracts of indefinite duration upon the termination of their employment the Respondents were in Breach of Sections 9(1), 9(3) and 10 (1) of the Protection of Employees (Fixed -Term workers) Act 2003. In addition the respondents were in breach of Section 8(2), in not giving the complainants objective grounds for the renewal of their contracts in September, 2003. Through their Union the complainants referred the case to a Rights Commissioner.
The Rights Commissioner, in his Recommendation on the two cases, issued on 12th September, 2005, found that –
(a) it was accepted by the respondent that the issuing of contracts to the claimants had been overlooked and that contracts had issued to them in either May (respondent) or September (claimants) 2003, which were backdated to November, 2001.
(b) either way, it was clear that following the “temporary” contracts from May – November 2001, no further contracts were issued until either May or September 2003.
(c) the final contract offering a period of “temporary specified purpose employment” backdated to November 2001 seemed to have been in blatant disregard of the Act.
(d) the claimants should have been offered contracts of indefinite duration in September, 2003, rather than further renewal of their contracts (of fixed-term) and that this would only have reflected the reality on the ground.
(e) the redundancies in December, 2004, should, therefore, not have happened. The claimants in that case, should be treated as if their employment had not ended in December, 2004 and as if they had remained in their employment on a normal continuous basis.
Accordingly, the Rights Commissioner found the complaints to be well founded and directed the claimants’ reinstatement from 9th December, 2004 on the same basis as if they had been offered contracts of indefinite duration in September, 2003.
He also decided that the claimants should return their redundancy payments (deriving from the termination of their employment in December 2004) to the respondent.
The respondent appealed the Decision to the Court on the 12th October, 2005, and a Labour Court hearing took place in Galway on the 12th April, 2006.
The Claimants, through their Union, contended that the issuance of the terms and conditions applicable to the contract which was entered into in November, 2001 in fact constituted a new contract which came into being in September 2003. On that basis they argued that the respondents were in breach of a number of provisions of the Act as follows
Section8(2) of the Act : Written Statements
Section 8(2) of the Act states
“Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest date of the renewal”.
Consequently, the respondent is in breach of Section 8(2) of the Act.
Section 9(1) of the Act states
“where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed-term of no longer that one year”
The complainants state that a fourth and final contract issued to each of the claimants , and that by the issuance of this contract the Respondents had terminated the contract of employment entered into in November, 2001 and entered into a new fixed term contract in breach of the Act.
The claimants did not accept that one contract issued in May, 2003, and one in September, 2003. Regardless of the dates, both contracts were issued, signed and countersigned in September, 2003.
Section 9(3) of the Act states that “ where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration”
The Union, on behalf of the claimants, contends that the claimants should have been issued with contracts of indefinite duration effective from 12th September, 2003, and that this is reinforced by the clear breach of Section 9 (3) in backdating the contract to 4th November 2001, in full knowledge of the provisions of the Act.
The claimants also state that the work on Scattery Island (for which the last contracts were issued) is not yet anywhere near completion will be ongoing for years to come and that work has been carried out in that location since December, 2004. In addition the claimants would have been happy to continue to work anywhere within the Athenry District as they had in the past.
Section 10 (1) Information on employment and training opportunities.
Section 10 (1) states
“An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to receive a permanent position as other employees”.
The Union contends on behalf of the claimants that they were denied an opportunity to receive permanent employment, the same as other employees.
A number of named employees, all of whom had commenced work with the respondents in the year 2000 (one year after the claimants) had been made permanent . The claimants were not made permanent. The claimants were not informed that the positions which were made permanent had become available and were not offered an opportunity to apply. This is in clear breach of Section 10(1) of the Act.
In response to the Respondents arguments the claimants did not accept that the vacancies were filled at a skill level they did not have – they were general operative vacancies requiring no more skill than possessed by the claimants.
Given the breaches of Section 8, 9 & 10 of the Act, the claimants argued that the Decision of the Rights Commissioner should be upheld.
(1) When the claimants’ contracts were extended to 30th November 2001, the availability of ongoing funding allowed the Respondent to retain both claimants after that date. When it came to notice that the terms of the contract had not been conveyed to the claimants in writing as had been standard practice up to then, these terms were issued in 2003. The respondents contended that one set of terms was issued in May 2003 and the other was issued in September 2003. These contracts were dated 28th May and 12th September 2003. They were signed by the claimants on 24th September and 3rd October 2003 respectively. Both contracts were countersigned by the respondent, dated 12th September 2003. The contracts were on the basis of “the purpose being to complete the schedule of works at Scattery Island as designated by the District Architect” and were at all times intended to merely reflect the agreement entered into in November 2003.(2) In relation to the Union's contention that the respondent had failed to inform the claimants of the objective grounds justifying the renewal of their Fixed term contracts for a further period in breach of Section 8 (2) of the Act the Respondents stated:
- (a) The Act only came into being on 14th July 2003 so therefore the objective grounds criterion only covered the claimant whose last contract issued on the 12th September 2003 (the respondent disagrees with the Union’s contention that both contracts issued in September 2003);
(b) The Act provides that the rules stating that there can be only one further fixed-term contract of duration not longer that one year, following 3 years of continuous employment, do not apply where there are objective grounds justifying the renewal of a contract for a fixed term only and in the instant case such grounds clearly existed. It is in the nature of the operation of the OPW that much of its work is seasonal and it must employ seasonal workers annually such as drainage, maintenance workers, parks staff, national monuments staff, tourist guides and functions staff. Personnel such as those in the office of the President, drainage construction or flood relief must obviously be employed for the duration of specific projects. It was clear that the claimants were employed on such a project and this, indeed was stated in their contracts, thus satisfying the provisions of Section 8 (2).
3. In relation to the Claimants contention argue that there was no reason for the termination of their employment and that there was an immense amount of work not completed at the time when they were let go, in fact, the designated programme of works on Scattery Island was completed by the third quarter of 2004. Solely on compassionate grounds, the respondent acceded to a request from local management not to terminate the claimants’ employment until 8th December 2004 (one of them was away on honeymoon). In consequence, for more than 3 months, the additional costs had to be resourced from other sources. It was not possible to continue this.There is no National Monument site where works could not continue almost ad infinitum, but work programmes must be tailored to available funding, which is what occurred in this case. Ongoing maintenance works will have to be carried out on a routine basis by the permanent OPW workforce.
In consequence, the Respondent did not act in breach of Sections 9(1) and (or 9(3) of the Act. The Respondent was entitled for the aforementioned reasons to issue contracts in the manner it did. The Respondent also strongly contends that the necessary objective reasons were cited in the contracts, i.e. “completing a specific task on the occurrence of a specific event”.
In regard to Section 10 of the Act, four other individuals were made permanent in this area in 2003. As a matter of course, all vacancies are advertised throughout the OPW, which has an industrial workforce of over 1,800 countrywide. The individuals referred to here had specific skills not possessed by the claimants (boatman, steeplejack, and two stonemasons).
The Respondent alleges that the Rights Commissioner erred, both in fact and law in that-
-he both agrees and disagrees that the final contracts were issued in May and September 2003, and is clearly confused as to the facts-his contention that the 2001 contracts were not “fixed-term” is technically correct but would require the respondent to have anticipated the 2003 legislation
-the employer was not “in blatant disregard of the Act”. The failure to issue new contracts between 2001 and 2003 was not due to any malfeasance but to a single administrative omission, which did not treat the employees less advantageously than if they had issued at the correct time.
If the issue of the contracts was the kernel of the matter, the case should haven fallen under the Terms of Employment (Information) Act, 1994, and this was not before the Rights Commissioner.
The Act provides that an employer can issue continuing fixed-term contracts once the objective grounds criteria have been satisfied. This was clearly the case here. Neither employee had an expectation of continuity past the end of tenure of the Workers Programme. The only error was the inadvertent delay in issuing contracts between November 2001 and May/September 2003.
Therefore, the Rights Commissioner ailed to adduce any evidence in law or in fact to support his conclusion that the claimants should be reinstated with contracts of indefinite duration.
Both claimants were properly declared redundant and neither the position to reinstate them, nor any alternative, exists any longer.
The Law Applicable
Under Section 9(1) of the Act, A fixed-term contract may only be once renewed where 3 years of continuous employment has been completed on or after the passing of the Act, and then only for a fixed-term of no longer than one year.
While the disputed contracts were renewed in September of 2003, they were initiated on 4th November 2001. The issuing of the contracts was merely a written confirmation of a situation which had de facto, existed since 4th November, 2001, being fixed-term contracts until the completion of the work schedule at Scattery Island.
Accordingly, the contracts are not subject to the provision of the Protection of Employees (Fixed-Term) Act 2003, and the appeal must fail.
The Court finds that the terms of the Act did not apply to the final contracts, which took effect on 4th November 2001. The Court overturns the Recommendation of the Rights Commissioner and allows the appeal. The Court so decides.
Signed on behalf of the Labour Court
4th October, 2006______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.