FULL RECOMMENDATION
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : ESB NETWORKS (REPRESENTED BY ESB LEGAL SERVICES) - AND - GROUP OF WORKERS (REPRESENTED BY PADRAIG J. O'CONNELL SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision R-034407-033045--033002-032491-032634-032636-032843-032716-032286-FT-05
BACKGROUND:
2. A Labour Court hearing took place on the 1st February, 2007. The Court's Determination is as follows:
DETERMINATION:
This is an appeal by Mr. Brendan Murphy against the Decision of a Rights Commissioner in which he found against the Claimants in a claim under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). At the Rights Commissioner hearing Counsel for the Appellant argued that ESB Networks contravened section 9(1) of the Act in not offering Mr. Murphy (and others) a contract of indefinite duration at the expiry of his fixed term contract of employment on 30th September, 2004, and in not affording him (and others) the same conditions of employment as those applicable to comparable permanent employees.
The Rights Commissioner held that the claim was not well-founded as Mr. Murphy was an Apprentice and therefore he was not covered by the provisions of the Act.
The other Claimants, who were party to the claim at the Rights Commissioner, did not appeal his Decision.
The Rights Commissioner based his conclusion on the finding of a similar caseKingham v ESB Networks FTD 8/2005where the Court found:
- “…Section 2 makes it clear that a person engaged on an apprenticeship scheme is not to be regarded as a fixed-term employee for the purposes of the Act”.
In its appeal Counsel for the Appellant submitted that the Rights Commissioner misconstrued and misapplied the determination of the Labour Court in theKinghamcase.
At the Rights Commissioner hearing a second aspect to the claim was submitted, whereby Counsel sought to amend the claim to include a reference to the Unfair Dismissals Acts 1997 – 2001 and an associated amendment of the title of the claim. The Rights Commissioner did not uphold this claim and the Appellant did not appeal against that aspect of the Decision.
Background
Both parties agreed that the material facts of Mr. Murphy’s case are similar to those stated in Mr. Kingham’s case:
ESB Networks is engaged in the construction and maintenance of electricity distribution networks. It had employed three categories of workers, namely, electricians, linesmen and general workers. In 1996, it embarked on a restructuring programme known as the Cost and Competitive Review (CCR). As part of this process it concluded a collective agreement with trade unions representing its staff which provided for the merger of all three categories of staff into a single craft-based category to be known as Network Technician.A further collective agreement (known as the PACT Agreement) was concluded between ESB Networks and the relevant trade unions as part of the CCR process. This Agreement provided,inter alia, that 130 temporary general workers who had been employed prior to 14th April 1997 would be appointed to permanent positions as Network Technicians. It was expressly agreed between the parties to the PACT Agreement that the said appointments would be a once-off arrangement and that no similar accommodation would be sought or considered for those appointed to temporary positions after 14th April 1997. The operative date of this Agreement was 1st June 2001. However, temporary workers recruited after the cut-off date of 14th April 1997 were to be offered the opportunity to participate in an apprenticeship scheme through which they could attain a National Craft Certificate.Mr. Murphy commenced employment with the appellant as a temporary general worker on 12th January 1998. His employment was subsequently renewed on a succession of fixed-term contracts as follows:
Commencement Expiry
12/01/1998 31/12/1998
01/01/1999 02/04/1999
22/02/1999 28/01/2000
29/01/2000 29/09/2000
30/09/2000 01/06/2001
02/06/2001 31/03/2002
01/04/2002 27/09/2002
28/09/2002 03/11/2003
04/11/2003 30/09/2004
The Complainant’s Case
While accepting the finding in theKinghamcase and accepting that the material facts of this case are the same, Counsel for the Complainant held the view that this case is not an authority for the fact that Mr. Murphy was not covered by the Act. He stated that a key consideration in theKinghamcase centered on the net question of “whether the appellant contravened Section 9 of the Act by renewing the respondent's fixed-term contract of employment in a manner or on terms proscribed by that section.”He stated that,it appears, the arguments in Mr. Kingham’s case were centred on the idea that the contract of apprenticeship was a further fixed term contract and, as such, that he was now entitled to a contract of indefinite duration in line with the applicable provisions of the 2003 Act.
Furthermore, Counsel for the Complainant made it clear to the Court having regard to the definitions set out in section 2 of the Act and to the applicable case law as considered in theKinghamcase, that he was not arguing that an apprenticeshipper seis in some way a contract of service, and accepts that the definition of “fixed-term employee” is quite clear in excluding those in vocational training relationships and apprentices.
However, he argued that the factual characteristics of the Complainant’s contract of apprenticeship relative to the work which he had previously carried out as a fixed term worker, suggest that he is not on an apprenticeship but is in reality on a new fixed term contract of employment. He proceeds to suggest that in fact the apprenticeship is a means of avoiding the provisions of the Act and to ensure that the Complainant continues to do valuable work for the Respondent but at a reduced rate of pay and without security of tenure. In that regard, details of the actual work carried out by the complainant were submitted to the Court, stating that the only material difference was the extra training requirements and instruction components.
The Respondent’s Case
ESB Networks strongly rejected the argument that the work experience gained by an apprentice and a general operative were one and the same. Firstly, it stated that the apprenticeship provided is a FÁS statutory standard-based apprenticeship approved by FÁS. Seven phases must be completed and the apprentices will be required to attend an Institute of Technology or other College for three phases. Indeed, Mr. Murphy is presently attending Dundalk IT College, and is completing the fourth phase, run by FÁS.
The training involves tuition in technical, mathematical and scientific knowledge to enable the apprentice to proceed to the next on-the-job phase, where he is rotated to different areas in order to gain wider experience. Training is also acquired at the ESB Training School in Portlaoise. As the apprentice proceeds through the apprenticeship, he becomes more skilled and is enabled to carry out more technically complex work and is obliged to carry out this work to complete his apprenticeship to the satisfaction of FÁS. With the qualifications come very high levels of approval. In contrast, as a General Operative, his duties would be at the most basic level, with very limited approvals. Those who choose to do an apprenticeship are highly qualified and skilled electricians working for both ESB and other companies on a worldwide level.
Issues for Consideration
It is common case that the findings in theKinghamcase are not disputed. Both sides accept that the legal status of a contract of apprenticeship is not capable of being regarded as a fixed-term contract within the meaning of the Act.
Therefore, the question for consideration by this Court is whether from 1st October 2004 when Mr. Murphy was placed on a contract of apprenticeship, ESB Networks was in reality placing him on a contract of employment. Counsel for the Appellant contended that when the contract of apprenticeship is examined closely, it will be found that it was not an apprenticeship but a contract of employment, and accordingly submitted that the Respondent was in contravention of Section 9 of the Act by renewing the Complainant’s fixed-term contract of employment.
The Respondent explained to the Court that the Complainant’s apprenticeship was governed by FÁS “The New Standard-Based Apprenticeship” and supplied extensive documentation to the Court on the details of the scheme. Under the heading “Curriculum Model For New Apprenticeship”, it states:
- “The new system would be modular with alternating periods of on and off-the-job training.”
On-The-Job-Training and Development
-Specific skills and standards will be prescribed for each on-the-job phase.
-Employers will be responsible for ensuring that their apprentices develop the skills and standards prescribed for each on-the-job phase.
-The periods of on-the-job training and development may vary by trade and will be determined by the training and developmental requirements of each trade.
Off-the-Job Training
-It is envisaged that the maximum cumulative phases of off-the-job training and development, in any particular trade, will normally be 40 weeks.
-The total cumulative phases of off-the-job training and development will be determined by the requirements of each trade.
-Off-the-job training and development will be provided by either:
-FÁS training Centre-Department of Education College/School, or-Approved industry-based training centre.
The Respondent explained that the scheme operates on the basis that the apprentice must complete seven phases each containing different tasks to be completed. Through-out the four years an apprentice will attend an Institute of Technology or other College for three of the seven phases in the apprenticeship. The Complainant is currently attending Dundalk Institute of Technology carrying out phase four of his apprenticeship, which is run by FÁS. During these College phases the apprentice is taught the technical, mathematical and scientific knowledge to enable them to go onto the next on-the-job phase and gain experience using the newly-acquired knowledge. They also provide further training in the ESB Training School in Portlaoise. The Respondent supplied full details of the Complainant’s training history, both before and after undertaking his apprenticeship, which indicated that the type of training undertaken since commencing his apprenticeship were more complex than the basic courses undertaken as a General Operative. Details of his “Apprentice Rotation History” were also provided. This gave details of the various areas/projects he has been assigned to as an apprentice including his off-the-job assignments.
The Respondent outlined in specific detail the differences in the work the Complainant would have carried out as a General Operative with the work he does as an Apprentice, e.g.
As a General Operative he was involved at a very basic level as a support person in cable laying, meter installation, customer connections, fault hunting and restoration of supply. Whereas as an Apprentice he is involved in the scientific side of these activities - terminations, commissioning, trafo and cable ratings, sizes of fuses, medium and high voltage substation work, CT metering, profile metering, double-tariff metering and CT metering testing. Furthermore, he has greater levels of approvals as an apprentice than he had as a General Operative and as he progresses through the apprenticeship he will attain a “Person In Charge of Work” level of responsibility.
Counsel for the Complainant held that for all intents and purposes the work carried out previously under the fixed-term contracts was the same as the work carried out as an apprentice; the only material difference was the requirement to attend training, getting instruction and the rotations. He submitted that the majority of the work on rotations was “non-craft” work with “non-crafted” employees. Counsel held that the contract of apprenticeship was a “sham”, a “flag of convenience”, as the Complainant continues to do the same work he had previously done as a General Operative.
The “Nature of Apprenticeship” was examined in theKinghamcase:
- “The apprenticeship contract is one of four years' duration or such longer period as may be necessary to attain a National Craft Certificate. It is a statutory scheme governed by rules made by FAS pursuant to powers contained in the Industrial Training Act 1967 and the Labour Services Act 1987.”
“The essential purpose of a contract of apprenticeship is to provide the apprentice with the training and skills necessary for him or her to qualify in a trade or profession.”
Having examined the details and the factual characteristics of the Complainant’s contract of apprenticeship, the Court is satisfied that it fulfills the essential requirements of such a contract. Therefore, as there is no dispute on the findings in theKinghamcase, the Court finds against the Complainant’s appeal of the Rights Commissioner’s Decision. In consequence the Court holds that the Respondent did not contravene Section 9 of the Act and the Complainant’s appeal is not well-founded.
Determination
The appeal is disallowed and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th March, 2007______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.