FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FEDERAL SECURITY (NEWCO) LTD (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRL) LTD) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner r-077243-ir-09/JT
BACKGROUND:
2. Federal Security (Newco) Limited came into existence when the Noonan Group took over Federal Security Solutions in July 2009 after it had gone into Receivership. The Company provides security services to its customers which includes having security guards on site and also mobile patrol officers. The Claimant is a Night Mobile Patrol Supervisor whose responsibility it is to cover a number of sites in the midlands region. The Claimant is seeking an additional night allowance to be paid to him on top of his hourly rate. Management rejects the claim as they maintain that the composite rate paid to the Claimant includes unsociable hours' allowance payment.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 26th August, 2009, the Rights Commissioner issued his Recommendation as follows:
"Having considered the claimants case, I recommend that the claimant receive a proper written contract of employment as per the relevant sections of the Terms of Employment (Information) Act 1994....I find his claim well founded and recommend that the claimant be paid an increase of €1.40 per hour on top of his existing rate....I further recommend that the claimant receive a payment of €7,000 retrospective payments and compensation for not being paid an allowance for night work."
On the 21st September, 2009 the Employer appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 8th February 2011.Subsequent to the hearing the parties supplied further detailed information as required by the Court.
UNION'S ARGUMENTS:
3. 1. A night allowance payment was paid in addition to his basic hourly rate for some time but was later deducted without any adequate explanation.
2. The composite rate for the Industry is calculated using a formula which is based on overtime rate and the number of hours worked. It excludes any unsociable hours element.
COMPANY'S ARGUMENTS:
4. 1. The Claimant was never advised that he would receive a night allowance in addition to his composite hourly rate when he was appointed to his new position.
2. The differential over the years 2008 to 2010 has been eroded and has not been unique to the Claimant. It has arisen due to the seriousness of the economic circumstances of the Company which resulted in the Company being put into Receivership in July 2009.
DECISION:
The Company’s appeal before the Court is against the Rights Commissioner’s Recommendation which found in favour of the Claimant. The Claimant claimed that on appointment to a promotional position as Mobile Night Supervisor, the Company had failed to provide him with written terms and conditions and to pay him an unsocial hours allowance. The Rights Commissioner awarded an increase in pay of €1.40 per hour to the Claimant plus €7,000 retrospective payment to include compensation.
The Company did not attend the Rights Commissioner’s hearing for reasons which were explained to the Court.
The Court sought details of pay rates for the Claimant pre and post his promotion, in particular, it sought details of the differential paid in recognition of his position as a Supervisor. In response the Court received a substantial amount of information, however, it has not assisted the Court to clarify the issue.
Accordingly, the Court recommends that the Claimant should be paid the Day Supervisors rate (which the Court understands is €12.08 per hour) plus €1.40 night duty allowance. Furthermore, the Court recommends that the appropriate retrospection based on the recommended rates plus allowance, should be paid back to 1st January 2009.
The Court varies the Rights Commissioner's Recommendation accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
1st July 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.