EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Niall O’Hara, 57 Beaumont Crescent, Dublin 9 PW77/2014
- Appellant PW283/2014
against the recommendation of the Rights Commissioner in the case of:
Aer Lingus, Shamrock House, Dublin Airport, Co. Dublin
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O’Carroll Kelly BL
Members: Mr. J. O’Neill
Mr. C Ryan
heard this appeal at Dublin on 9th July 2015, 15th 16th and 17th December 2015
Appellant: Hamilton Turner Solicitors, 66 Dame Street, Dublin 2 and
Tom Fitzgerald, UNITE, 15 Merrion Square, Dublin 2
Respondent: Ms Rosemary Mallon B.L. instructed by:
Arthur Cox Solicitors, Earlsfort Centre, Earlsfort Terrace, Dublin 2
These appeals came before the Tribunal by way of an appeal by an employee against a Rights Commissioner Decision (r- 132655-pw-13RG, r-144044-pw-14/JT).
The claimant commenced his employment with the respondent in 1978. It is agreed that during all his time with the respondent his union had signed up to various collective agreements all of which were sector specific. In 2009 it became apparent that the pension fund (IASS) had gone into deficit. Over the following few years various solutions evolved. It is accepted that the solutions required some very complicated computations and actuarial assessments. Whilst the permanent solutions was being developed a collective agreement known as ‘Greenfields’ was implemented to address the financial situation. This collective agreement involved a pay reduction and non-payment of increments for the year’s 2010/2011/2012. All employees signed a waiver in relation to this agreement. That agreement came to an end in December 2012.
The claimant’s 2013 increment was due for payment in April 2013. It was not paid. The claimant wrote to the respondent requesting payment of his increment. He lodged his first claim under the Payment of Wages Act with the Rights Commissioner a few days later. Again in April 2014 he was not paid his increment. He wrote to the respondent again on the 10th April, 2014 stating:
“ I note yesterday, with disappointment, that my increment for 2014 has not been included in my pay that I received yesterday”.
What is clear is that the two payments referred to above are pre the November, 2014 pension deal and post the expiry of the Greenfields agreement. The matter was referred to the Labour Court. The Labour Court recommended a deferment of the 2013 payment for 5 months. Following that recommendation the 2013 payment was paid in September, 2013. The amounts still outstanding are 5 months for 2013 and 9 months for 2014.
The Tribunal is satisfied that the claimant is entitled to those payments based on the fact that the November, 2014 pension deal did not have retrospective effect and that time period was outside the Greenfields collective agreement.
The Tribunal find that the retrospective use of the above agreement to defer the 2013 increment and the non- payment of the 2014 increment were unlawful deductions and the sums due and owing to the appellant should be paid to him.
The situation post November, 2014 requires further scrutiny. The respondent stated that the proposed pension agreement was applicable to all of its 2506 employees regardless of the grade, sector or union status. What was being proposed was a freezing of the IASS ( defined benefit scheme), commencement of a defined contribution scheme, a lump sum payment (as a form of compensation) and an annual stabilisation payment. The very complicated computations were actuarially assessed.
Employees contributed to the solution by negotiating and ultimately accepting:
- The revised accrued benefits in IASS
- Non-payment of increments for 2014, 2015, 2016.
- Changes in conditions of employment for each grade.
The respondent contributed to the solution by :
- Funding the reduced accrued benefits in IASS for serving, deferred and retired
- Funding stabilization payments for 2013, 2014, 2015 and 2015.
- Paying a lump sum into an escrow account for each member who completed and
signed the memorandum of understanding waiver.
The claimant argued that the memorandum of understanding has no binding effect and therefore cannot be relied on by the Tribunal. Even if that is the case, the fact of the matter is that the claimant clearly, by his actions, implied acceptance of the terms of the agreement. He did not return the stabilisation payments when it was open to him to do so. The Tribunal find the claimant’s explanation for why he did not return the stabilisation payment to be disingenuous. Furthermore, he did not make any issue of the payments that were being made into the new pension scheme.
Having considered all of the evidence in relation to the final agreement, the Tribunal conclude that:
- All of the Unions named in the ICTU documents submitted, negotiated the terms of
the final agreement on behalf of all of its members.
- Aer Lingus applied the terms of the final agreement to all employees, union and
non- union and all employees union and non-union are bound by those terms.
- The claimant’s retention of the stabilisation payment implied acceptance of the terms
of the agreement.
- The claimant’s acceptance of the payments made into DCS scheme further implied his
acceptance of the agreement.
The Tribunal therefore varies the decision of the Rights Commissioner under the Payment of Wages Act 1991.
Sealed with the Seal of the
Employment Appeals Tribunal