ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002408

Complaints for Resolution:

Date of Adjudication Hearing: 28th June 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 19^th March 2016, the complainant referred two complaints pursuant to the Payment of Wages Act to the Workplace Relations Commission for adjudication. The complainant is a security guard and the respondent is a provider of security services.

The complaints were scheduled for adjudication on the 28^th June 2016. The complainant attended in person and was accompanied by a colleague. The respondent was represented by two members of staff.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General of the Workplace Relations Commission, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant outlined that he commenced employment with the respondent on the 30^th July 1997 and that he works as a security guard at the offices of a firm of solicitors. A Employment Regulation Order was enacted on the 1^st October 2015 (pursuant to Statutory Instrument 417/2015). This provides for an hourly rate in the security industry of €10.75. His current rate of pay is €9.8675 and the complainant outlines that he is entitled to the rate of remuneration provided in the ERO.

The complainant outlined that he was red-circled in 2007 and has been paid a first increment in 2007 but had not received any further increments after that date. The red-circling occurred after a conciliation process with the respondent. He said that his normal working week is 37.5 hours and that this was spread over three shifts. He was only paid the travel allowance per each shift worked and did not receive the overtime payment when he was not working, for example during a period of sick leave.

Respondent’s Submission and Presentation:

The respondent is a licensed provider of security services and states that the complainant is employed as a full time, permanent security officer. Every week, he is contracted to work 40 hours per week, with an additional 5 hours at time and a half. The respondent outlines that the complainant has the grade of Section Sergeant and is paid a composite rate, which includes allowances. Traditionally, any changes to these terms have been made via collective agreement and the terms of a JLC or composite type agreement have not been applied. It stated that it was relying on section 14 of S.I. 417/2015, which applies to existing agreements. It also pointed to the complainant’s guaranteed gross of €626.35 per week, which is higher than the amounts provided by the ERO. The respondent also submits that if it is the complainant’s claim that he should have been paid the JLC rates, he should have submitted a claim in 2008 at the time the initial JLC rate came into being; he is now out of time. It submits that JLC rates were not applied to Section Sergeants as they always had better terms. The respondent concluded its submission by saying that it did not wish to withhold any employee’s entitlements, but that it wished to obtain legislative clarity.

Findings and reasoning:

The complainant is a longstanding employee of the respondent and this dispute relates to his entitlement to an hourly rate of pay of €10.75, following the enactment of an Employment Regulation Order on the 1^st October 2015. The ERO was enacted pursuant to S.I. 417/2015.

The Schedule of the ERO provides that “security operatives” fall within its scope, and defines “security operatives” as follows: ‘security operative’ means “a person employed by a security firm to—

            (i) provide a security service for contract clients of that firm, and

            (ii) perform one or more of the primary functions set out below.”

The ERO lists the following “primary functions”:

“(i) The prevention or detection of theft, loss, embezzlement, misappropriation or concealment of merchandise, money, bonds, stocks, notes or other valuables.

            (ii) The prevention or detection of intrusion, unauthorised entry or activity, vandalism or trespass on private property either by physical, electronic or       mechanical means.

            (iii) The enforcement of rules, regulations and policies related to crime          reduction.

            (iv) The protection of individuals from bodily harm.”

The Schedule of the ERO excludes the following from the scope of the ERO:

            “(i) Workers affected by an Employment Agreement, that is "an agreement    relating to the remuneration or the conditions of employment of workers of any       class, type or group made between a trade union of workers and an employer or         trade union of employers or made at a meeting of a registered joint industrial    council between members of the council representative of workers and members        of the council representative of employers.

            (ii) Workers to whom an Employment Regulation Order made as a result of             proposals received from another Joint Labour Committee applies.

            (iii) Managers, assistant managers and trainee managers.”

The question, therefore, to be determined in this case is whether the complainant is subject to "an agreement relating to the remuneration or the conditions of employment of workers of any class, type or group made between a trade union of workers and an employer…” as provided in subsection (i) of the Schedule.

Article 14 of the ERO provides in relation to collective agreements:

“This Employment Regulation Order does not affect in any way already existing agreements (if equal or better) be they local, national, official, or in company.”

The complainant asserts that he is entitled to the hourly rate of €10.75 provided in the ERO. The respondent states that the complainant and other Section Sergeants fall outside of the ERO because they are subject to a collective agreement with a named union. It submits that the complainant was not subject to the previous JLC and receives the following additional payments: time and a half for five hours per week; travel allowances; an unsocial allowance and a supervisors allowance. Taking these allowances together, the respondent submits that the complainant receives a base hourly rate of €13.91, i.e. above the base rate provided in the ERO. The complainant replies the time and a half, one travel allowance and the unsocial allowance are variable and are paid only for shifts worked.

This case is best resolved by relying on the plain wording of the ERO. The relevant exclusion in this case is that at subsection (i): an agreement relating to the remuneration or the conditions of employment of workers of any class, type or group made between a trade union of workers and an employer. While it is the case that the complainant was not paid JLC rates when they were in place, the respondent could not point to an actual agreement, reduced to writing and signed by the parties, or otherwise sufficiently evidenced. Given that there is no agreement relating to remuneration or conditions of employment, it follows that the ERO applies to the complainant’s rate of pay.

Section 1(1) of the ERO provides that the worker shall be remunerated at €10.75 per hour. The complainant’s hourly rate was €9.8675 and it appears from the pay slips submitted at the adjudication that this remuneration was rounded up to €9.87 per hour. It follows that the complainant is entitled to the shortfall for every hour worked in normal working hours, i.e. the amount of 88 cents per hour. He is also entitled to use €10.75 as the base rate to calculate other payments, such as overtime.

The Payment of Wages Act provides that an employee may recover for unlawful deductions within a period of six months from the date of contravention. This complaint was made on the 19^th March 2016 and the complainant is therefore entitled to recover for the six month period preceding this date. This covers the period of the 19^th September 2015 to the 19^th March 2016. Given that the ERO came into force on the 1^st October 2015, the shortfall in the hourly rate only arises from this point in time.

In respect of the first complaint and for the reasons outlined above, I find that the claim is well founded and the complainant is entitled to hourly remuneration of €10.75 and is entitled to recover for the shortfall in his pay for the period of 1^st October 2015 to the 19^th March 2016.

The second complaint relates to historic shortfalls arising from the difference between the complainant’s basic pay and the old JLC rates. The complaint form states that the date of contravention is the 1^st April 2009. This is clearly outside the limitation period permitted by the Workplace Relations Act and the complaint is therefore not well founded.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00003258-001

For the reasons outlined, I find that the claim pursuant to the Payment of Wages Act is well founded and the complainant is entitled to hourly remuneration of €10.75 and is entitled to recover the shortfall in his pay for the period of 1^st October 2015 to the 19^th March 2016.

CA-00003258-002

For the reasons outlined above, I find that this claim is not well founded as it relates to a time period outside the maximum limitation period allowed by the Workplace Relations Act.

Dated:   21/03/2017