An editor who claimed that she was left €238,000 worse off than her permanently-employed colleagues at a broadcaster because she was treated as an “independent contractor” for 11 years is to be given more time to consider a retrospective benefits deal tabled by the company, a tribunal has decided.
The worker’s Siptu representative had described the situation as “an endless cycle of bogus contracts being forced on those in the weakest positions by those ... who had the biggest of salaries and were in the safest of jobs”.
In a recommendation on a dispute raised under the Industrial Relations Act 1969 by the anonymised complainant, the Workplace Relations Commission (WRC), concluded that the worker should get no more than what the broadcaster had already provided for in a retrospection deal for around 100 workers agreed with trade unions.
To do otherwise could “exposé” the broadcaster to claims by the other staff “coming back and looking for money over and above that which was offered and agreed to in a voluntary consultative process”.
The complainant said she first started to work for the broadcaster in the late 2000s as an editor, receiving daily or weekly pay, engaged as an independent contractor rather than an employee.
She was “simply happy to be engaged in any way by the respondent entity,” the tribunal noted. The pattern continued with a “cycle of simply renewing the independent contractor agreement”, the tribunal heard. The complainant’s position was that the situation was “not satisfactory” because she felt “unfairly treated” compared to colleagues of hers who were permanently employed.
Her belief was that her engagement was “precarious” and that she could be “dropped at a moment’s notice”. She said she lost out on accrued annual leave, public holidays and sick pay, as well as the maternity benefits afforded to permanent staff of the broadcaster.
She calculated that she had been left short some €238,000 over the course of more than a decade.
Des Courtney of Siptu, appearing for the worker, described the situation as “an endless cycle of bogus contracts being forced on those in the weakest positions by those ... who had the biggest of salaries and were in the safest of jobs”.
The broadcaster’s solicitor, Louise O’Beirne of Arthur Cox, rejected the suggestion that it “knew or ought to have known that [the complainant] was anxious to be a permanent member of staff”.
A “groundswell of dissatisfaction” among staff built up against the use of so many contractors and got the backing of trade unions at the broadcaster, leading to the commissioning of a review by consultancy firm Eversheds in 2017, the regularisation of employment contracts, and an independently-prepared retrospection deal, the tribunal noted.
Adjudicator Penelope McGrath noted that after the Eversheds process, the complainant was offered a part-time contract at 60 per cent of full-time hours starting in 2019 which “reflected the pattern of engagement with [the company] over the previous two years”, and signed it in May 2019. This was later increased to a part-time contract for 69 per cent of hours after the complainant queried the terms.
In 2021, there were talks to trade unions which also led to a retrospection deal being put forward in August 2022.
The deal included the recognition of past continuous service based on the findings of the Scope assessments; top-up payments for those who would have got maternity or paternity leave from 2013 to 2019, and a variable ex gratia lump sum, the tribunal noted.
In the complainant’s case, the lump sum was worth €10,500, either as a cash payment through payroll or an additional voluntary contribution into an approved pension scheme, the tribunal heard. However, because she had given birth outside the window of eligibility for a maternity top-up of €5,000, she was denied this payment, the tribunal heard.
The tribunal noted that the complainant “sought to renegotiate” but that the broadcaster “felt bound” by the terms of the retrospection deal — with “no wiggle room” for the complainant. The editor decided not to sign and brought a complaint to the WRC in November 2022, it was noted.
Ms McGrath wrote that while the broadcaster was a commercial entity, it was subsidised with taxpayer money and had an obligation to operate “in as lean and efficient a way as might be allowable in law”.
“The situation that allowed for the use, if not exploitation, of contract workers may not have been satisfactory, but it was not illegal,” she wrote.
She concluded that the issue of retrospection had been considered in the discussions between management and trade union officials representing the workers which led to the retrospection deal being offered in 2021.
She noted that the broadcaster had paid €44,326.06 to the Department of Social Protection in respect of the complainant’s PRSI entitlements going back to July 2008 — calling it a “considerable benefit” to the editor that came as a result of the talks which was “retrospective in nature”.
The complainant had opted in to the part of the “voluntary” process led to her getting a contract of employment, but had opted out of the retrospection deal, the adjudicator concluded. Ms McGrath said she could not see how providing the employment contract could create “backdated benefits” which were “clearly unintended”.
Ms McGrath recommended the broadcaster “extend the time for the payment of the ex gratia lump sum of €10,500 for a further 12 weeks”, and recommended the same of “other terms and conditions attaching to this sum”.
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