ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002914
Complaint for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 02/11/2016
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998 following the referral of the above complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Attendance at Hearing:
A State Body
Complainant’s Submission and Presentation:
The complainant states in his submission that a collective agreement between his employer and the IMPACT trade union, negotiated in 2002, contains a clause whereby an allowance generally known as the PCW 1% is to be paid to the three members of staff of the section in which he works, who are closest in age to retirement. He states that to the best of his knowledge, this allowance was most recently paid in 2013 or 2014.
The complainant, whilst making a complaint about his own situation, is also a trade union representative for IMPACT in the section of the respondent organisation in which he works. He states that he became aware of the agreement when a member asked him to investigate why he was not being paid this allowance. After lengthy attempts to resolve this matter with management, it eventually came to his attention that the agreement may be discriminatory on the grounds of age. He claims that the agreement was discriminatory to him on the age ground, as he was not given the opportunity to benefit from the allowance from the time of his employment in May 2007.
The complainant states that the last date of discrimination in this matter is 29 March 2013.
In later correspondence with the Commission, the complainant indicated that the disputed collective agreement may not have been a valid one, since he was unable to find any evidence – he is a union representative for IMPACT – that the proposed terms were ever agreed by the membership.
According to the complainant’s evidence at the hearing, the respondent’s human resource officer proposed terms that were different from those proposed by IMPACT, and the new terms were never formally agreed. He did not dispute, however, that payments were made on the terms proposed by the official side, until 2014.
Respondent’s Submission and Presentation:
The respondent submits that the complainant’s claim, made under section 77 of the Employment Equality Acts 1998 to 2015, relates to payments made pursuant to a collective agreement relative to the payment of a PCW 1% allowance to members of staff in the section. The agreement is dated 11 April 2002. The last payment made under this agreement was made on 21st November 2014.
The respondent further submits that the complainant’s WRC claim form states that the most recent date of discrimination arose on 29 March 2016. This contention is at variance with information provided by the complainant in correspondence. In the letter the complainant alleges that he suffered discrimination on two separate and distinct occasions (and based on two differing logics) from when he commenced employment in the section in 2007 until the payments of the PCW 1% allowance under the 2002 agreement ceased in 2014.
1. Time period between 2007 and 2012 – the complainant says that he was discriminated against on the grounds of age as the 1% allowance was paid out to the four oldest members of staff in the section. He says that during this time he was not one of the four oldest members of staff and was not eligible to receive the allowance and as such he was discriminated against.
2. Time period between 2012 and 2014 – In 2012 the complainant states that he became one of the three oldest members of staff within the section and became eligible for a payment under the terms of the agreement (which he describes above as a discriminatory agreement). Despite his assertion that it was discriminatory, he seeks to rely upon the agreement and assert that he should have been paid under it. However, he was not paid the 1% allowance and he alleges that this action was discriminatory as he believes he is one of three oldest staff members who he claims were eligible for the allowance.
The respondent further points out that, based on his letter dated 11 September 2016, the complainant also argues that there is no evidence that a valid agreement ever existed.
The respondent contends that a preliminary jurisdictional issue in relation to the time limit to bring a complaint to the WRC arises. According to the respondent, by the complainant’s own evidence the last payment under the 2002 PCW 1% allowance agreement was made in 2014. Pursuant to section 77(5) of the Employment Equality Acts, a complainant must take a claim for redress within 6 months from the most recent date of discrimination. As no payment has been made under the 2002 agreement since 21 November 2014 there can have been no possible act of comparative discrimination since that date and the respondent hence argues that the case before the WRC has no basis.
The Respondent submits that the entirety of this Complaint is statute barred having regard to s.77(5) of the Employment Equality Act 1998.
Regarding the complaint about a collective agreement, the respondent in its initial submission made the point that any complaint about a collective agreement should be made under s.86 of the EEA 1998. The Respondent therefore takes the view that the Complainant is precluded from proceeding with a claim which has been made under the incorrect section.
In terms of the actual personal unfavourable treatment alleged, this solely relates to an alleged failure to apply a collective agreement. The respondent submits that this is not a matter properly dealt with by the WRC, but rather is an industrial relations issue. It states that in its view, the complainant has not been able to make a prima facie case of less favourable treatment on the ground of age.
At the hearing of the complaint, counsel for the respondent argued that a collective agreement, whilst not being the same as a contract pursuant to Barrington J.’s findings in O’Rourke v. Talbot Ireland Ltd, 1984 ILRN 587, was in place between the parties by virtue of the fact that the terms suggested by HR were approved in writing by the respondent’s senior manager (documentary evidence was adduced to this effect), and that these terms were subsequently performed by the respondent without any protests from the union side. Counsel opened the case of Miley v R& J McKechnie Ltd (1949) 84 ILTR 89 in support of the doctrine of incorporation of a term by means of a course of dealing between the parties.
In the alternative, counsel argued that even if no collective agreement was found to exist between the parties, the claim was statute-barred on time limits pursuant to S. 77(5) of the Employment Equality Acts, because the last payment had been made on 21 November 2014, and after that date, no situation of less favourable treatment of anyone could have arisen, because nobody was paid.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. However, Section 77A of the Employment Equality Acts 1998 – 2015 gives me the power to dismiss complaints at any stage which in my opinion are made in bad faith, or are frivolous, vexatious or misconceived, or relate to a trivial matter.
Issues for Decision:
From the respondent’s submission and evidence provided in the above complaint, the issue arises whether the complaint relates to a collective agreement. The next issue then is whether it is misconceived in law. The notion that it might be misconceived first arose for me when the matter was delegated to me, and I instructed the WRC case officer to write to the complainant on 18 July 2016, as follows:
I refer to the above case, which the Director General has delegated to Mr Stephen Bonnlander for adjudication and decision. Mr Bonnlander has reviewed the documents on file and states that the complaint at present is not properly brought and that he will have no jurisdiction to hear it. Pursuant to S. 86(2) of the Acts, which deals with discrimination in collective agreements, the respondents are defined as the parties to the agreement. This means not just the employer, but also the relevant trade union. However, you have not brought a complaint against IMPACT. The Equality Tribunal’s decisionin Byrne and O'Hanlon v. Diageo also refers:
Please revert at your earliest convenience as to whether you want to bring a complaint against IMPACT, and file that complaint. The hearing currently scheduled for 10 August will then be postponed to allow both complaints to be heard together.
The complainant reverted on 16 September 2016 to state that until very recently, he had been unable to locate documentation relating to a collective agreement, and also that the agreement was never voted on by IMPACT members. Under these circumstances, he submitted, his complaint should be investigated pursuant to S. 77 of the Employment Equality Acts. The arguments which the parties made at the hearing are summarised above.
Legislation involved and requirements of legislation:
As noted above, Section 77A of the Employment Equality Acts 1998 – 2015 gives the Director General, and by delegation, myself, the power to dismiss complaints at any stage which in my opinion are made in bad faith, or are frivolous, vexatious or misconceived, or relate to a trivial matter.
A claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”.
In my view, this complaint is similarly misconceived because despite the complainant’s assertions, I am satisfied that his complaint very clearly does relate to a collective agreement. The situation is as follows:
The disputed agreement for the complainant’s section in the public sector organisation he works in related to the implementation of a public-service wide agreement concluded in 1999, whereby 1% of payroll costs in public sector organisations could be awarded to specific employees over and above normal salaries, in recognition of special contributions made or responsibilities discharged, in the respondent organisations. Management and unions in departments and offices were then enjoined to agree mechanisms for allocating these awards in their organisations, on a local level.
In terms of the situation in the respondent organisation, I am satisfied the following proposal was implemented: that three named workers with the greatest seniority should enjoy the awards, which effectively lifted them to a higher pay grade, on a personal-to-holder basis until they were either left the employment, were promoted, or retired, and that one other named candidate was identified for upgrading after these. The relevant documents were opened by both parties in evidence. I am further satisfied that the respondent performed this agreement, without protest from anyone, it would appear, until the last post holder retired in November 2014.
Whilst I accept the finding in O’Rourke v. Talbot Ireland Ltd, 1984 ILRN 587, that a collective agreement is not a contract, I do think some useful guidance for assessing the situation between the parties can nevertheless be derived from the contract law case of Western Electric Ltd v. Welsh Development Authority, 1983, Q.B. 796, where one party started to perform the terms of a contract and the other party was held, by its acquiescence, to have accepted these contract terms. Clark, in Contract Law in Ireland, 5th ed., p. 15, notes that this decision is not unproblematic when viewed against the classic doctrines of contract law, and that seems certainly true. Applied to a collective agreement situation however, it becomes common sense: If the terms approved by management were truly not acceptable to union members, if they had been contentious and in need of a formal vote, or even if there had been a slight of hand from the management side, to press for implementation prior to such a vote, it would be for the union to lodge protests right away. As it were, in the case on hand, the entire agreement came into existence, ran and eventually expired without any objections until the within complaint arose some 18 months after the agreement ended. In such a situation, an employer ought to be able to rely on the facts as described, for an assumption that the agreement had indeed been accepted by the staff.
From all the evidence adduced, I am satisfied that a collective agreement did exist between the parties, even if it was perhaps not perfectly executed in terms of a formal affirming union vote. As noted before, the agreement does not appear to have been contentious during the years it had effect. It was affirmed by the respondent’s senior management and subsequently implemented.
Given that I have found that the complainant’s case relates to a collective agreement, not only was the complaint brought under the wrong section of the Acts, but the complainant also failed to implead his trade union, IMPACT, in order to make his complaint a valid one pursuant to the requirements of S. 86(2), of the Acts. Furthermore, the complainant failed to do so despite the fact that I had this clearly pointed out to him in correspondence.
For ease of reference, it seems appropriate to set out the reasoning of the Equality Officer in Byrne and O'Hanlon v. Diageo in full. She stated that
“7.6 Before proceeding further, it is necessary for me to consider whether this claim is properly before me in accordance with the provisions of Section 86 of the Acts. Section 86(2)(c) of the Employment Equality Act 1998, which governs the reference of collective agreements to the Director of the Equality Tribunal, states that: '"the respondents" means the parties to the agreement, other than (where relevant) the complainants’
7.7 The complainants have cited Diageo as the respondents in this claim. However it is clear from the evidence before me that the parties to the agreement also included the relevant trade unions (SIPTU, TEEU, ATGWU and AEEU). I drew both parties’ attention at the hearing to the definition of “respondents” in that Section of the Act and asked for submissions, in particular from the complainants, as to whether the wording in the Act in relation to such a complaint requires all parties to the collective agreement to be cited as respondents. It was submitted on behalf of the complainants that there are circumstances in which there may only be one respondent named in a claim relating to a collective agreement and the decision in Department of Finance v 7 Named Complainants [DEC-E2005/406] was cited in this regard. It was also suggested that there may be situations where there are only two parties to a collective agreement in which case if a complaint is made by one party there will only be one respondent. It was also contended that there is nothing in the Act which mandates an interpretation requiring multiple respondents in proceedings pursuant to Section 86.
In relation to the arguments submitted on behalf of the complainants I note that no decision was made in Department of Finance v 7 Named Complainants in relation to the definition of “respondents” in Section 86(2)(c) as the Director did not consider that a collective agreement had been referred to her. I also consider that the wording in Section 86(2)(c) provides for situations where there are only two parties to a collective agreement and one of those parties makes the complaint. However there are clearly more than two parties in this collective agreement. I am not satisfied that the complainants’ contention that there is nothing in the Act which mandates an interpretation requiring multiple respondents in proceedings involving a collective agreement under Section 86 is correct.
The primary canon of statutory interpretation is to give words in a statute their ordinary meaning. Section 5(1) of the Interpretation Act 2005 clearly underlines that the literal rule is still the primary canon of interpretation as it specifies the occasions when there should be a departure from that rule. It states:
“In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) – (a) that is obscure or ambiguous or (b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of – (i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or (ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned, the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”
I consider that the words in Section 86(2)(c) '"the respondents" means the parties to the agreement” are plain, meaningful and specific. In this case the statutory provision is not “obscure or ambiguous.” Furthermore a literal interpretation of the provision of the Act cannot be said to be absurd. I cannot identify any justification for reaching the conclusion that a literal interpretation of the provision of the statute would fail to reflect the plain intention of the Oireachtas. Accordingly I find that I am required to construe the provision “in the ordinary and natural meaning of the words and sentences” in which it is written. Accordingly I find that in order for a reference under Section 86 to be validly before me all the parties to the agreement should be named as respondents. I find therefore that I have no jurisdiction to investigate this claim.”
As noted previously and as is evident from the extensive quote above, I am satisfied that the decision DEC-E2012-048, Byrne and O'Hanlon v. Diageo, is clear authority that in order to bring a valid complaint against a collective agreement pursuant to S. 86 of the Employment Equality Acts, all parties to the agreement must be impleaded. These are the employer or employers and trade union(s) which negotiated the agreement.
Accordingly, the within complaint, apart from being brought under the wrong section of the Employment Equality Acts, in that it ought to have been brought under S. 86, is misconceived in law with regard to the requirements of S. 86(2), and I therefore have no jurisdiction to investigate it. The issues regarding time limits, or whether it should even be possible to bring a complaint about a collective agreement which has since expired, and the merits of the substantive complaint which were raised by the respondent are therefore moot.
Based on the deliberations set out above, I herewith dismiss the case on hand as being of misconceived jurisdiction pursuant to S. 77A of the Employment Equality Acts, 1998 to 2011.
In accordance with section 77A(2) the complainant may appeal against this decision in the Labour Court on notice to the Director specifying the grounds of the appeal. Such an appeal must be lodged no later than 42 days after the dismissal.
Dated: 8 December 2016