ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011791
A Bus Driver
A public transport company
Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 10/04/2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Worker commenced his employment with the Employer as a bus driver in April 1971 and retired at the age of 66 on 30th August 2017. A Labour Court Recommendation in relation to the consolidated rates of pay issued in April 2017. The Worker seeks the new rates of pay to apply to his pension. Alternatively, if this cannot be arranged, he is seeking compensation for the loss encountered.
Summary of Worker’s Case:
The Worker submits that he commenced his employment with the Employer as a bus driver in April 1971. He was not allowed to work beyond 30th August 2017 due to his retirement age. Prior to his retirement, difficulties had arisen between the Employer and the Trade Union members, which resulted in industrial strike action being taken. These issues were referred to the Conciliation Services of the WRC and subsequently to the Labour Court. The Labour Court issued its Recommendation on 13th April 2017. One of the issues in dispute was the consolidated rates of pay which also affects the pension payments. At a meeting on 4th May 2017 the Employer’s representatives gave an expectation that the Recommendation would be implemented by July 2017. The Recommendation was voted and accepted by the members of two main unions of 12th and 22nd May 2017. A further meeting took place with the Employer and a commitment was given by the Employer’s representatives that the Recommendation would be implemented by 6th August 2017. At meetings on 18th July and 29th August 2017 representations were made for the consolidated rate to apply to the drivers who were retiring as they would be at loss. The Employer refused as they said they were bringing in the consolidated rates as soon as the rosters are implemented and for all drivers at the same time. Later this was done location by location. The Worker was retired on 30th August 2017 and therefore was not given the new consolidated rates of pay and his pension entitlements as the Employer failed to implement the new measures by the dates they had assured they would. The loss to the Worker resulted in €31.75 per week and over €6,600 in his lump sum payable from his pension. The Employer implemented the Recommendation on 3rd December 2017. SIPTU on behalf of the Worker submits that the delay in implementation was solely due to the Employer and not the workers. The Worker was given a legitimate expectation by his Employer that he would be retired on the new consolidated rates of pay. The Worker did not volunteer to retire. The Worker applied to remain working after his 65th birthday but the Employer would only allow him to remain at work for a period of one year, which he did. Then, the Worker was forced to retire on 30th August 2017 before the Employer implemented the new consolidated rates of pay.
SIPTU on behalf of the Worker contends that the Employer deliberately delayed this aspect of the Recommendation. In support of this statement SIPTU quotes the following from the letter from the ACEO dated 11th September 2017:
“Many aspects of the agreed Labour Court recommendation have, with your support, been implemented across staff grades. The work practice changes, the reductions in rates of pay and premia payments are saving money and are helping to stabilise the finances of the company. However, the fundamental changed in drivers rosters have yet to be rolled out but this is planned to commence in the coming weeks. These new rosters are a critical part of the business plan and will not only save money but will enable critical efficiencies to be delivered that will allow new services to be launched. A large body of work remains to be completed relating to how we operate the company and how the support functions are structured to best facilitate the Operations team to deliver the service the customer requires.”
The Employer had informed that the consolidated rates of pay would be brought in after the rosters were implemented. However, it was the Employer who delayed the rosters being implemented at all times. The only workers at a loss from the Recommendation were those who were forced to retire between April and December 2017.
Summary of Employer’s Case:
The Employer submits that the Pension Scheme is a statutory scheme. The rules of the Scheme are contained in various Statutory Instruments. Any changes to the rules must be agreed by the Employer, Trade Unions representing staff concerned and approved by the Minister for Transport, Tourism and Sport. Insofar as the benefits are concerned the pension is based on the basic weekly wage at the date of retirement. The Employer has no discretion with regards to the calculation of pension benefits for the staff. On his retirement from the company on 31st August 2017, the Worker’s basic salary was €624.10 and his pension entitlements were calculated accordingly. Following industrial action in early 2017, the Labour Court issued its Recommendation in April 2017. It was subsequently accepted by the Employer’s staff in May 2017. Implementation of new work practices and revised rosters came into effect on 3rd December 2017 following extensive and prolonged negotiations with Trade Unions. The Employer notes that the drivers had major input into the changes. A new composite rate of pay was introduced on 3rd December 2017. Pensions Scheme members who retired on or after 3rd December 2017 had their pension entitlements calculated accordingly.
The Employer submits that it calculated the Worker’s pension entitlements according to the rules of the Scheme using his weekly rate of pay at the time of retirement. As stated previously, the Employer has no discretion with regard to the calculation of pension benefits for staff. Therefore, the Employer is satisfied that the Worker’s pension entitlement was calculated correctly and his claim to have the pension calculated at the new consolidated rate has no basis.
Findings and Conclusions:
On the basis of the evidence and written submissions I find as follow:
The Pension Scheme is a statutory scheme, which can be amended only by the Minister for Transport, Tourism and Sport with the agreement of the Department of Finance, following agreement between the Employer and the Trade Unions. It is common case that the Recommendation of the Labour Court was implemented on 3rd December 2017. There is a considerable divergence between the Parties’ expectations in terms of the time required to have the Recommendation implemented. SIPTU submits that the Employer deliberately delayed the implementation. The Employer, on the other hand argues that there was no deliberate delay, as alleged. The Employer argued that it was nationwide process and protracted negotiations took place. The Employer noted that it would not benefit in any way by delaying the process.
The Labour Court Recommendation was voted upon and accepted by the Unions in the end of May 2017. Subsequently, the vote on the new rosters aspect took place in November 2017.
The Worker retired in August 2017 and his pension entitlements were calculated accordingly, based on his weekly wage applicable at the time. SIPTU, on behalf of the Worker is seeking a recommendation that the Employer applies the new consolidated rates of pay to the Worker’s pension on the basis that it is the Employer who is responsible for the delay. Alternatively, if this cannot be arranged, SIPTU is seeking compensation for the loss encountered.
I note the Worker’s disappointment with the length of the implementation process. However, there was no evidence adduced that the Employer deliberately delayed implementation of the Labour Court Recommendation. I accept the Employer’s assertion that the process involved radical changes to work practices and pay. It is unfortunate that the Worker had to retire prior to the implementation of the Recommendation. However, it is my view that any organisation must be given time to implement changes, particularly changes of this magnitude and the evidence before me does not support the argument that the Employer deliberately stalled the process.
I find that there is no basis to recommend that the Employer should apply the new consolidated rates of pay retrospectively or compensate the Worker in respect of the new rates applied in December 2017.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
On the basis of the evidence and my findings above and in accordance with Section 13 of the Act, I do not recommend in favour of the Worker.
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Pension entitlements-Retrospective payment-Labour Court recommendation implementation