ADJUDICATION OFFICER RECOMMENDATION
A Gate Keeper
A Semi State Body
John Brosnan, Industrial Relations Manager
Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 13 of the Industrial Relations Acts 1969 following 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.
This dispute has emerged following a pursuance of a contract of indefinite duration following two extended periods of work with the present employer. The employer in the case is not able to accede to his request.
Both parties were represented. The Claimant by Martin Corbett, SIPTU and the Employer by John Brosnan, Industrial Relations Manager.
Both parties made helpful written submissions on the day.
Summary of Claimant’s Case:
The Claimant has worked as a Gate Keeper on a temporary contract since June 2008. He had worked for the employer previously before leaving to take up other work.
His claim today is to be appointed as a permanent member of staff within the company. The area where the claimant is based has been under threat of automation over the last number of years. He is the main breadwinner in his home and is fearful of this prospect. He is troubled by the lack of explanation for his protracted temporary status.
The claimant has place himself at the employer’s disposal over the past 11 years and has committed fully to the company. The Union outlined that the claimant is at a distinct disadvantage by his continued temporary status as he is not a member of the company pension scheme. The Union contended that the claimant has long satisfied the criteria for a contract of indefinite duration in accordance with the Protection of Employees (Fixed Term) Act, 2003.
The claimant has been actively engaged in seeking opportunities within the company and is prepared to relocate to secure these, but his efforts have been fruitless to date.
The claimant addressed the hearing and appealed for a permanent appointment in recognition of his elongated record of service and the inequity faced by him on an every day basis in relation to losing out on a permanent position with pension. He believed that he had been unfairly treated as the colleagues who commenced with him during his fisrt period of employment had all long since past the permanent contract phase. He submitted that he was highly committed to the company and motivated towards a healthy career progression there. He confirmed that he had applied for every internal position which came his way, but he had not been appointed, be believed that his temporary status was coming against him in these selection processes.
Summary of Employers ’s Case:
The Employer in responding to the claim, outlined that the claimant has been employed since 9 June 2008 as a contract level crossing keeper on a fixed purpose contract:
This agreement shall commence on 9 June 2008 and shall continue for a fixed purpose until the automation of the level crossing or as business needs dictate
The Employer has entered a national programme of automation but has not declared an applicable date for the completion of process yet. The Employer cannot agree to the permanent appointment of the claimant with this amount of uncertainty
The Employer submitted that the 2008 contract remains valid as the level crossings have not yet been automated or closed and no other business need has arisen that required the company to change the contract. The claimant is one of 22 peer group who are not appointed to a permanent contract.
The Employer outlined that the company had not had many opportunities since the claimant came back to work in 2008 as this period had coincided with some “dark days “for the country and much reduced mobility within the company. A Voluntary Severance programme ran concurrently and there had not been any opportunities to concede to the claimant’s request.
The Employer gave details of a pre-existing WRC Conciliation conference in a neighbouring county late in 2018 in relation to the appointment of 3 level crossing keepers. The Employer agreed to explore all avenues in relation to the issue, the Conciliation conference has not been reconvened by either party.
The Labour Court Recommendation LCR 21605 at national level prompted a review on the redeployment of surplus staff as the company has access only to VR (voluntary redundancy) The Employer contends that this issue is still under negotiation and is directly linked to any decision made in relation top the appointment of employees to permanence contracts. A Draft policy in that regard is in existence but is not agreed. In the West of Ireland there are currently 8 colleagues of the complainant in possession of permanent contracts but remain surplus to requirements due to automation. There are 130 staff remaining, linked to manual works
The Employer submitted that decisions regarding appointments are also directly linked to the approval for funding for VS (voluntary severance) and Automation.
The Employer is unable to issue a permanent contract in this case.
Findings and Conclusions:
I have given a lot of attention to this claim. I have read and considered both written submissions and listened to the oral submissions.
Firstly, the case is taken as an Industrial Relations claim and not advanced as an employee rights complaint under the Protection of Employees (Fixed term) Act, 2003.
Secondly, I had some concerns that the case may have been limited by the exclusions cited under Section 13(2) on a body of workers. I am satisfied that there is a rightful claim under Section 13(2) of the Act. I accept that this case is being advanced on a unique set of circumstances based on extended tenure, family needs and preparedness to relocate, if necessary.
Thirdly, I also had concerns that Section 13(3) (b) may have come in to play by the LCR 21605, dated November 2017, a national labour Court recommendation which appears to have directed further engagement on redeployment of surplus staff. I understand from the parties that the claimant has not been engaged in any of these processes on surplus staff and he is currently busy in his role and not yet surplus.
I have been requested to investigate this dispute and to make a recommendation on the merits of this dispute.
This is a claim for tenure on behalf of a long serving claimant. The Employer wants me to reflect on the period of his employment as running side by side with a national economic crisis and a company wide rationalisation and change process where permanency could not be grown or dispersed safely.
The Fixed Term Legislation has at its core, Section 9 where an employer may not renew a fixed term contract over an aggregate of 4 years outside objective grounds justifying such a renewal. In this case, the claimant has held the same contract since his return to the company in early June 2008. His life has changed, and he has explained that his acquired higher levels of familial responsibility and commitment to the company warrant a permanent contract. The Employer is adamant that the company’s’ hands are tied on this.
As an aside, the Labour Court in National Gallery of Ireland V Cleary FTD 1236, 2012, makes useful observations on the interface of market forces and the law in fixed term contracts.
I took some time to consider this present case via the prism of “fair and reasonable” criteria as I do not have statutory authority under the Fixed term Act on this occasion.
I can only view the case from the party’s unique presentations and not as a test case for slow moving legacy talks arising and unresolved from LCR 21605.
I was sorry to see that the parties had not taken the time to engage locally on the specific points referenced in the claimant’s case. This was a mistake.
I appreciate that the claimant’s current period of employment coincided with the very worst economic climate this state has ever seen, where the Memorandum of Understanding / Austerity Programme involving the “Troika “of European Central Bank, Eu Commission and International Monetary fund has been a persistent headliner and over seer of Irish Fiscal Policy. The country is now emerging from this tumultuous period and careful consideration needs to be given to rebuilding opportunities in the workplace.
Michael Doherty in his 2016 academic article on Irish Labour Law post austerity, DULJ 2016, 39(1) 51-73 suggests three theories of reform aimed at refloating the workplace in a post austerity setting. One of which considers EU Directive on transport in EU 2014/24.
In this regard, allow me to cite three areas where reform could help. First, the new public procurement directives explicitly require Member States to take appropriate measures to ensure that, in the performance of public contracts, economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements, and various ILO conventions (Article 18 of Directive 2014/24).A robust transposition and operation of the Directives at Member State level, and protection by the Court of Justice for the operation of ‘social clauses’, would enable Member States to use taxpayers’ money to further ‘decent work’.
I went on to consider Statutory Instrument 286/2016 which transposed the Eu Directive 2014/24/EU into Irish Law. I can see merit in the parties convening to discuss the claimant’s case incorporating the imperatives contained in this S. I.
The Employer has submitted that the claimant can’t be viewed in isolation in this case. There are at least 21 others all in possession of temporary contracts for various reasons.
I have considered the claimants contract of employment. I cannot see how an 11-year-old contract of employment can be allowed to fairly and reasonably exist without formal review during this period. The employer has protected the interests of the company by insertion of a broad mobility clause which should have reassured the apprehensive voices.
The employee will be required to work at any location designated by the company and to transfer location as required without an entitlement to further emolument.
There is also provision at clause 14 to permit an alteration of singular and collective terms and conditions of employment between the company and the claimants in this case.
I view this as a potential Springboard to consider the claim for both parties. I must find that neither party has engaged in face to face discussions in this case to date prior to the WRC hearing. This is contrary to best practice and is disrespectful to both parties. Engagement should always preface a presentation of the case to WRC.
However, time is of the essence in this claim and I would urge the parties to engage directly on the claimant’s case. The claimant described himself as a family man without the pension cover of most of his colleagues. His only pathway to pension appears to be via a contract of indefinite duration.
I am mindful of the extraordinary duration of insecure employment in this case which clearly disregards the stated intention of the Framework Agreement on fixed term work,  OJ L 175/43 concluded by the EU Social Partners.
I have considered the employers outline of the elaborate change agenda and the consequent low rate of funded permanent posts which evolved very slowly from new projects or plans. I also note the clear optimism expressed by the claimant that a particular sector of the employer business was most likely to generate his opportunity for permanency.
I find it unfair and unreasonable that the claimant is expected to hold out indefinitely for a permanent position in a company where he has worked a cumulative 14 years. In any other circumstance, he would have a contract of indefinite duration, by now.
I cannot accept that the economic downturn or local rationalisation or delayed growth are enough reasons to deter this occurrence. The claimant is actively engaged in gate keeping and this need has not yet disappeared. Even if it had disappeared, the claimant agreed a mobility clause from the outset.
I have concluded my investigation and have found merit in the dispute.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend concession of the claim for an accelerated access to a contract of indefinite duration.
I recommend that the partiers immediately enter an intensive round of engagement and negotiations on the claimants claim as set out. I believe it fair and reasonable that the employer converts the claimant’s employment from that of temporary contract to one of a contract of indefinite duration in the spirit of the Policy outlined in EU Framework Agreement, and SI 286/2016 within three months of the date on this recommendation.
Dated: 22nd August 2019
Workplace Relations Commission Adjudication Officer:
Contract of indefinite duration