INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
UNIVERSITY COLLEGE DUBLIN
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. Appeal of Recommendation of a Rights Commissioner r-115932-ir-11/DI.
2. The Claimant has been employed as a part-time Genealogy Teacher in Adult Education for nearly twenty years until in 2010 he was awarded a permanent position after negotiations with his Union and Management. When the Claimant enquired as to why his pension arrangements were not put in place, Management informed him that due to an 'administrative error' in his new contract reference was made to'pensionable post'when in fact this was never intended. The Union and the Claimant are seeking to have his contract of employment confirmed as a permanentpensionable contract.Management argue that if this were done it would create a precedent throughout the public service.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 19th June 2013, the Rights Commissioner issued his Recommendation as follows:-
"... I find any change or variation to the Claimant's contract, unless imposed by statute, requires the consent of the contracting parties. I therefore declare the Claimant's complaint to be well founded. I require the Respondent to put in place the necessary arrangements to recognise the Claimant as a permanent pensionable employee from 1st May 2010."
On the 11th July, 2013 the Employer appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 29th October 2013.
3. 1. In 2010 the Union was successful in reaching agreement with the Employer to have the Claimant appointed to a permanent pensionable post effective from 1st may, 2010.
2. The change now being sought by Management to the contract cannot be implemented unilaterally.
4. 1. The post held by the Claimant is a part-time position, there is no full-time Comparator post which is pensionable. Therefore the part-time post is not pensionable as per the Protection of Employees (Part-time Work) Act 2001.
2. The pension scheme does not provide for pensionable service for hourly paid staff and would require permission from the Department of Education and Science and the Department of Finance.
It is clear to the Court that the terms of settlement agreed between the University and the Union provided that the Claimant would be provided with a permanent and pensionable post. This was reflected in the contract proffered by the University which he signed. Moreover, the covering letter of 5th May 2010 made it clear that the written document was to be regarded as setting out definitively the terms of the contract.
As pointed out by the Rights Commissioner this case was not taken under the Protection of Employees (Part-Time Work) Act 2001. Even if it was, there is nothing in that Act which could render the terms of the contract in issue void or unlawful.
The Court can see no justifiable reason as to why it should interfere with the Recommendation of the Rights Commissioner. Accordingly, the Rights Commissioner's Recommendation is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
13th November, 2013______________________
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.