KYRAN FITZGERALD
The Irish
Federation of University Teachers has written to the European Commission to
complain about a Labour Court decision affecting one of its
members.
It is calling on the Commission to investigate
Ireland's non-compliance with the fixed term workers directive, and Fixed Term
Workers Act, 2003, the statute examined by the Labour Court in the run-up to its
decision.
The 2003 Act provides protection to employees in the form of
accrued rights, culminating after a set period, in the right to a contract of
indefinite duration. However, exemptions on “objective grounds” are provided
for.
Last February, the Court overturned a ruling by a Rights
Commissioner in favour of the academic, Ann Buckley, awarding her a contract of
indefinite duration, together with €5,000 in compensation (see IRN 10/09 & Labour Court decision
FTD092).
SIGNED CONTRACT
Ms Buckley was made
redundant at the conclusion of her second contract. In the view of the Court,
the claimant signed a binding contract agreeing to the renewal of her contract
on a fixed term basis and could not subsequently retreat (“resile”) from this
position. Accordingly, she was not entitled to a contract of indefinite
duration.
The Court declined to accept the arguments put forward by Ms
Buckley that:
- 1) She did not understand what she was signing.
- 2) She was afraid that if she did not sign, the College (NUI Maynooth) could refuse to host the research project she was working on.
According to the union, the Labour Court decision “represents a
serious and fundamental undermining of the EU Directive on the rights of fixed
term workers”.
It added: “The Labour Court has opened the way for
employers to evade their obligations under European and Irish law simply by
getting a worker at his, or her, most vulnerable time to sign away their
rights.”
In a letter to the Commission dated July 31 last, the union
calls the Commission's attention to the existence of the Labour Court
Determination which it asserts is “in non compliance with Community
Law”.
According to IFUT, NUI Maynooth required the claimant to sign a
document attesting to the fact that there are “objective” reasons attached to
her employment which exempted her from the protections provided by the Fixed
Term Workers Act.
The union, however, added that before signing the
document, the claimant was not informed of her rights under the Directive, or
the Act, nor that by signing, she was, in effect, waiving her
rights.
“This decision (of the Labour Court) is a failure of the member
state to fulfil its obligations under Community law by rendering the rights
contained in the Directive ineffective.”
DIRECTIVE
‘UNDERMINED’
“The member state's Labour Court decision has
completely undermined the Directive. When the nature of the alleged “objective”
grounds is not substantiated, these alleged grounds become un-reviewable by any
independent body and thus, meaningless.”
In an open letter, the union
goes into further detail on the Labour Court decision and its implications. It
is highly critical of the manner in which the proceedings before the Court were
conducted.
“Dr Buckley was requested by the Labour Court to give evidence
under oath. IFUT was very reluctant to agree to this, especially given the
aggressive manner in which the employer's lawyer was conducting its case...
Despite the explicit assurances sought by IFUT, this cross examination was
conducted in a most hostile and aggressive manner (the Chairman had to intervene
several times) and lasted for several hours. It turned out to be an aggressive
fishing exercise.”
IFUT general secretary, Mike Jennings, also questioned
the rationale behind the Labour Court's decision to overturn the “detailed”
decision of the Rights Commissioner: “The Labour Court, in its Determination,
did not give a single word of explanation as to why the Rights Commissioner's
grounds for her Decision were invalid.”
“The grounds given by the Labour
Court for the rejection of Dr Buckley's claim were not even the grounds claimed
by the employer themselves.”
“The employer's grounds were, firstly, that
the fact that Dr Buckley's post was externally funded gave them the right to
deny her rights under the EU Directive and Irish law.”
“After the Rights
Commissioner issued her Decision, the employer changed its grounds of
justification to say that Dr Buckley was, in fact, not an employee at all! In
the course of two lengthy Labour Court hearings, this was their number one
argument.”
NOT 'CORE STAFF'
The Labour Court
heard evidence on the university's behalf, to the effect that the claimant “was
not part of the core staff and did not have the same responsibilities as they
would with regard to teaching and research and administration
duties”.
The witness, Fiona Palmer, Professor of Music, stressed that all
of the funding for the claimant's research projects came from outside sources.
The funding ended in September 2008 and the project, so far as she was aware,
concluded.
According to the Deputy Chairman of the Labour Court, Ray
McGee, the claimant was entitled in principle to a contract of indefinite
duration, as she had been employed on two successive fixed term contracts, the
sum of which exceeded four years, “unless objective grounds were offered
justifying the renewal of the fixed term contract”.
In October 2006, the
claimant signed a form containing the following: “Renewal of your employment is
justified by the fact that further temporary work has become available and that
funding is available to support that work for a fixed period. The University is
unable to offer a contract of indefinite duration as the funding in question is
available for a fixed duration only.”
The claimant told the Court that
she “did not understand what she was signing”.
The Court, however,
declined to accept this argument: “The sections were plainly expressed and it
was made clear that further fixed term work, rather than a contract of
indefinite duration, was being offered.”
“She did not consult her Union
nor did she take legal advice. If she was in any doubt as to what the clause
meant, then the logical course of action was surely to seek such advice before
signing the form.”
“She then saw the clauses encapsulated into a binding
contract, which she also signed three weeks later, again apparently without
taking advice.”
The Labour Court did award the claimant a small award, in
the form of €2,000 compensation for a breach of Section 8 of the 2003
Act.
This states that: “where an employer proposes to renew a fixed term
contract, the fixed term employee shall be informed in writing of the objective
grounds justifying the renewal of the fixed term contract and the failure to
offer a contract of indefinite duration.”
NO COURT
APPEAL
The IFUT General Secretary, Mike Jennings, explained his
union's decision to take the matter to the European Commission rather than
seeking to use the Irish courts.
“It is open to us to appeal the
Determination to the High Court, but we have decided not to go that route
because the High Court might well, of its own accord, seek guidance from the EU
in respect of this case and this would add a further lengthy delay to the
process…”
Mr Jennings added that he had little faith in the courts, here:
“The Irish courts have a bad track record on workers' rights, even when
international obligations are concerned. For example, the Supreme Court's
judgement in the Ryanair case clearly puts Ireland at odds with international
conventions regarding the right to independent collective
bargaining.”
“Even if the High Court found against us, that would still
leave Ireland in breach of the original EU Directive.” He added that currently
delays in securing a High Court hearing are currently running at between
eighteen months and three years.
In the past few days, the union has
received an acknowledgement of its letter from the Commission in Brussels, which
also confirmed that the matter has been passed on to its Employment, Social
Affairs & Equal Opportunities directorate.
LAWYERS'
ROLE
Mr Jennings also pointed out that the conduct of the
hearings before the Labour Court raised broader issues with regard to the
involvement of lawyers in proceedings before the Court.
“Universities, in
particular, are using lawyers more and more, with a tendency to use barristers.
At the same time, HR departments now have more staff. There have been absolutely
no cutbacks in this area.”
He warned that the positions of people on
fixed term contracts in third level institutions are “absolutely vulnerable” in
the current climate, “despite the much vaunted commitment to a knowledge
society”.
