FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : AN POST - AND - MARY THOMAS AND PAULA RIORDAN (REPRESENTED BY CWU) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appealing against Rights Commissioner's Decisions No: r-075704-pt-09/ POB& r-075706-pt-09/POB
BACKGROUND:
2. This case concerns appeals by the Union of Rights Commissioner's Decisions Nos: r-075704-pt-09/ POB and r-075706-pt-09/POB. The issue in dispute concerns service leave and whether it should be applied simply on the basis of service or applied on a pro rata basis to the complainants on the basis of their part-time status.
The Union's position is that service leave is based on service and should not be applied on a pro rata basis. The Union further contends that service leave is different to annual leave and is based on the number of years worked in the organisation irrespective of the work pattern.
Management's position is that service leave should be applied on a pro rata basis in the same way that annual leave is applied to part-time workers. It contends that to apply it as claimed by the Union would confer an additional leave entitlement to part time workers in comparison to their full-time colleagues.
The matter was referred to a Rights Commissioner for investigation. His Decision issued on the 2nd March, 2011 and found that there was no grounds for proposing a change to the employer's position as the service leave is proportional to the hours worked of a comparable full-time employee.
On the 18th March 2011, the Union appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001. A Labour Court hearing took place on 16th August, 2011.
UNION ARGUMENTS:
3 1 The workers are being treated less favourably than comparable full-time employees. Management's application of service leave on a pro-rata basis to part-time workers is a clear breach of the legislation.
2 The application of service leave should be based on actual service irrespective of the work pattern of the employees. Service leave relates to the number of years' service with the organisation and should be applied on that basis.
MANAGEMENT'S ARGUMENTS:
4 1 Management are correctly applying service leave to the workers. As the workers only work part-time, the service leave is applied on a pro rata basis in the same way that annual leave entitlements are applied.
2 Concession of the claim would result in the organisation incurring significant costs and would inevitably lead to repercussive claims which would be unsustainable.
DETERMINATION:
The dispute came before the Court by way of an appeal by the Union on behalf of Ms. Mary Thomas and Ms. Paula Riordan (“the Complainants”) against the decision of a Rights Commissioner given under the Protection of Employees (Part-Time Work) Act, 2001 (the Act) in relation to the entitlement of job-sharers in respect of service leave. The Rights Commissioner found in favour of the Respondent’s position and upheld that its practice of granting service leave to the job-sharing Complainants proportional to the hours worked of a comparable full-time employee.
Background
The Complainants are employed by An Post (“the Respondent”) as Post Office Clerks at its headquarters in the GPO, Dublin. Both Complainants are employed as job-sharers under the Respondent’s Job-Sharing Scheme, governed by Circular 17/2002. They are required to work half the normal hours of a full-time comparator and their terms and conditions of employment are adjusted on a pro rata basis dependent on the hours worked. In this case the two Complainants work week-on, week-off. On the week they are rostered on they work full working days.
The basic annual leave entitlements are 23 days. The Respondent also provides one additional day's leave after five years’ service and two additional days leave after ten years’ service.
The Complainants have in excess of ten years’ service and as job-sharers the Respondent provides them with 25 days leave in total, which is adjusted pro-rata by fifty per cent, yielding them twelve and a half days’ per annum. The Union submitted that the Complainants were being treated less favourably than their full-time comparator contrary to Section 9(1) of the Act. It maintained that the Respondent’s application of service leave to the Complainants meant that they were in receipt of one day’s service leave and not two as provided to comparable full-time employees with similar service. The Union stated that its claim was based on the number of years worked by the Complainants and was not dependent on the number of hours worked by them.
The Respondent stated that service leave is applicable to both full-time and part-time (including job-sharing) employees. It confirmed for the Court that the service leave in question is granted on attainment of the number of years’ reckonable service with the Respondent and is not dependent on the number of hours worked. It stated that in ascertaining the number of years service attained by an employee only absences of one year and over are disregarded.
The Respondent denied that it was in contravention of the Act and held that in paying the Complainants on a pro-rata basis for service days it was in compliance with the principle ofpro rata temporis.
The Applicable Law
The Protection of Employees (Part-Time Work) Act, 2001, was enacted to transpose into national law, European Council Directive 97/81/EC. Clause 4 of the Directive states:-
“where appropriate, the principle ofprorata temporisshall apply.Section 9 (1) of the Act states:
- " subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment be treated in a less favourable manner than a comparable full-time employee."
- "The extent to which any condition of employment referred to in subsection (2) is provided to a part-time employee for the purpose of complying with Section 9(1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable full-time employee concerned".
However, Section 10(2) of the Act qualifies Section 10(1) in stating that the condition of employment mentioned in 10(1) is a condition of employment the amount of benefit of which is dependent on the number of hours worked by the employee.
Based on the uncontested details of the criteria for attainment of the service leave in question, the Court is satisfied that it is not dependent on the number of hours worked but rather is dependent on the number of years’ service attained with the Respondent. Accordingly, Section 10 is not applicable.
In accordance with the principles of law applicable in the case ofGerster v. Freistaat Bayern(C1/95) 1997 IRLR 699 where the ECJ held that the practice of crediting job-sharers with 0.5 year’s service for promotional purposes for each actual calendar year’s service was unlawful, the Court finds that the practice of applying the principle ofprorata temporisto service leave in respect of the Complainants, who are both rostered to work full working days, is contrary to the Act.
This Court found inDunnes Stores Letterkenny v A Group of Workers, PTD046:
- “for proportionality to apply the benefit must be dependent on the hours worked by the part-time worker in any particular period vis-a-vis the hours worked by the full-time comparator in any particular period. This is a claim in respect of service, which is dependent on the number of years worked by the claimant. It is not a claim dependent on the hours worked and therefore in the view of the Court, Section 10 of the Act is not applicable in this particular case.”
Objective Justification
Without prejudice to its position that the job-sharers were being treated equally with comparable full-time employees, the Respondent also submitted that it could not afford to pay the cost associated with conceding the claim. The Court is of the view that that contention could not be accepted as a defence since in almost every case in which it is necessary to implement principles of equality there is a cost to the employer.
The Irish legislature decided not to introduce a provision into the Act that would permit a person to avoid the requirements of the Act on cost grounds.
The Decision of the ECJ in ofHill and Stapleton v Revenue Commissioners[1998] E.L.R. 225 held
- “ An employer cannot justify discrimination arising under a job-sharing scheme solely on the grounds that the avoidance of such discrimination would involve increased costs”
Determination
The Court determines that the Respondent's policy of paying half-pay for service leave in respect of the two Complainants constitutes a contravention of section 9(1) of the Act.
In accordance with its powers under section 17 (1), the Court determines that the complaint is well-founded and overturns the Decision of the Rights Commissioner.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th September 2011______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.