FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : VIKING SECURITY LIMITED - AND - TOMAS VALENT (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal Against Rights Commissioner Decision R-141336-Wt-13/Rg & R-140684-Wt-13/Rg
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 23rd July, 2014. A Labour Court Hearing took place on 4th September, 2014. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Tomas Valent (hereafter the Claimant) against the decision of a Rights Commissioner in his claim under the Organisation of Working Time Act 1997 against his employer, Viking Security Limited (hereafter the Respondent).
While other matter were before the Rights Commissioner the only point pursued in the appeal relates to the findings of the Rights Commissioner in relation to Claimant’s contractual obligation to work on Sundays and whether his rate of pay took that obligation into account.
The Claimant commenced employment with the Respondent on or about 27thSeptember 2012 and he remains in that employment.
The Complaint
In effect, the Claimant contends that the Respondent contravened s.14(1) of the Act in relation to his employment. That Section provides: -
- 14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
(d) by a combination of two or more of the means referred to in the preceding paragraphs.
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
Position of the Parties
The Respondent contends that the obligation to work on a Sunday was taken into account in the determination of the Claimant’s rate of pay. The Court was referred to a document entitled“ Viking Security Limited Terms of Employment Security Personnel”. In relevant part this document provides as follows: -
- Salary
Your salary will be based on agreed rates or future rates if any set out by the Security Industry Joint Labour Committee. Employees who work on Sunday or unsocial hours will be paid a premium as set out by the Security Industry Joint Labour Committee if applicable. Viking Security will comply fully with any directive set out by the Security Industry Joint Labour Committee, a copy of which is posted on our company board. Currently agreed salaries are above the minimum wage and incorporate a Sunday premium.
The Claimant told the Court in sworn evidence that the only document in relation to his conditions of employment that he received at the commencement of his employment was one headed “Letter of Engagement”. This document, in relevant part, provides as follows: -
- I the undersigned understand that as and from my commencement of employment as a Security Officer I will be paid €10.00 per hour. I have read and fully understand my conditions of employment
It was submitted on behalf of the Claimant that the only document that he received at the commencement of his employment was the Letter of Engagement which merely specified his rate of pay and made no reference to an obligation to work on Sundays or to payment for working on Sundays.
Discussion
Section 14(1) of the Act provides, in effect, that an employee who is required to work on a Sunday is entitled to an additional benefit in respect of that requirement where “the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay”.What is intended by this provision is that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive it they were not so obligated. As is clear from the opening words of s.14(1), in brackets, that compensation can take the form of an enhanced rate of pay over and above that which he or she would have received if the obligation to work on Sunday was not present. Not only must an additional benefit be provided but that benefit must be reasonable in all the circumstances. That entitlement is one of substance which a Rights Commissioner, and this Court on appeal, is obliged to vindicate.
The Court is aware from its own knowledge and experience that the normal mode of compliance with s.14(1), in the case of hourly paid workers, is to pay a premium on the basic rate in respect of each Sunday worked. Indeed, in the security sector that was the mode of compliance historically prescribed in the Employment Regulation Order for the sector before the statutory basis upon which those Orders were made was rendered void following the decision of the High Court inJohn Grace Fried Chicken Ltd v Catering JLC & Ors[2011] 3 IR 211. It remains the normal mode of compliance for those employees of the Respondent whose contracts of employment were concluded before the High Court delivered judgment in that case.
The decision inJohn Grace Fried Chicken Ltd v Catering JLC & Orsdid not impact on the entitlement of workers previously covered by Employment Regulation Orders to the benefit of s.14(1) of the Act. But it allowed for a mode of compliance other than the payment of a premium for work actually performed on a Sunday.
The question that arises in this case is whether the requirement to work on Sunday was taken into account in determining the Claimant hourly rate of €10.00. That rate was unilaterally determined by the employer and it is for the employer to show that at the time of its determination it contained an element intended to compensate the employee for the requirement to work on Sunday. In the Court’s view it is insufficient for the employer to simply say (as the Respondent does in this case) that because the rate exceeds the national minimum wage it compensates for Sunday working. If such a contention were to be accepted the effectiveness of the statutory provision would be seriously undermined in the case of all workers whose pay exceeds the statutory minimum.
In practice the Court can only be satisfied that an employee has obtained his or her entitlement under s.14(1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernable from the contract of employment or from the circumstances surrounding its conclusion. Where an hourly rate is intended to reflect a requirement for Sunday working that should be identified and clearly and unequivocally specified at the time the contract of employment is concluded either in the contract itself or in the course of negotiations.
In this case the Claimant gave sworn evidence that he only received the document relied upon by the Respondent containing a statement to the effect that his rate of pay took account of the obligation to work on Sunday in November 2013, over 12 months after his employment commenced. The document that he received and signed on the commencement of his employment did not mention the obligation to work on Sunday nor did it indicate in any way that his rate of pay reflected such an obligation. It was also accepted that the computation of the rate was neither explained to the Claimant nor discussed with him in the course of negotiations prior to the conclusion of his contract of employment. Moreover, no evidence was proffered to show that a rate of €10.00 per hour exceeds the rate generally applicable to Security Officers who do not work on Sundays in this or other employments within the sector.
Conclusion
For all of the reasons set out herein the Court does not accept that the Respondent has complied with s.14(1) of the Act in relation to the Claimant. Accordingly, the Claimant is entitled to succeed in this appeal.
In the course of his evidence the representative of the Respondent accepted that following the striking down of the ERO for the sector certain employers (excluding the Respondent) entered into a collective agreement with a trade union representing workers in the sector which provided, in effect, for a Sunday premium of time-plus-one-third. Section 14(3) of the Act obliges the Court to have regard to any such collective agreement in determining the value or minimum value of compensation for Sunday working that is reasonable in all the circumstances.
The Court measures the level of compensation for working on Sundays that is reasonable in all the circumstances at time-plus-one-third for each hour worked on a Sunday. The Respondent is directed to pay the Claimant a premium in that amount. Having regard to the time limit specified in s.27 of the Act, the Respondent is further directed to pay the Claimant arrears of Sunday premium, so calculated, for each Sunday on which he worked in the six months prior to the date on which the within claim was presented to the Rights Commissioner.
The appeal is allowed and the decision of the Rights Commissioner is substituted with the terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
15th October, 2014______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.