ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005894

Parties:

Complaint(s):

Date of Adjudication Hearing: 14/02/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

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

Background:

The complainants in these cases are employed as general operatives on a particular customer/client site. The respondent provides a range of facility services to its clients. The complainant’s contracts transferred to the respondent as a result of a TUPE on the 20th of March 2015. The herein complaints and dispute concerns the contractual rate for night work, which it is argued was not appropriately adjusted as a result of a general increase in the basic rate of pay applied on the 1st of October 2015. All of the complainants except one are engaged exclusively on night work. The cognisable period of complaint is from 3rd of May 2016 to 2nd of November 2015 (date of receipt of complaint by the WRC). The parties made written and oral submission to the hearing.

Summary of Complainant’s Case:

CA-00007945-001 The complainant commenced this employment in 2011. He works 37.5 hours per week together with one additional Sunday night shift each fortnight. He is paid for 90 hours per fortnight at the night shift rate (NSR). The NSR is not fixed but linked to the basic rate of pay in that it amounts to 133.4% thereof. On the 1st of June the ERO basic rate of pay increased to €9.05 and the NSR increased pro rata to €12.08. The rate was increased to €12.68 to reflect the increase in the ERO basic rate to €9.50 on the 1st of June 2008. The complainant’s contract transferred to the respondent in March 2015 under TUPE. The ERO minimum rate increased from €9.50 to €9.75 on the 1st of October following the transfer however no increase in the NSR was applied. The NSR is an implied term of contract and the failure of the respondent to increase the rate amounts to an illegal deduction within the meaning of s. 5 of the Act.

CA-00007946-0001 The complainant commenced this employment in 2008. He works 37.5 hours per week together with one additional Sunday night shift each fortnight. He is paid for 90 hours per fortnight at the night shift rate (NSR). The NSR is not fixed but linked to the basic rate of pay in that it amounts to 133.4% thereof. On the 1st of June the ERO basic rate of pay increased to €9.05 and the NSR increased pro rata to €12.08. The rate was increased to €12.68 to reflect the increase in the ERO basic rate to €9.50 on the 1st of June 2008. The complainant’s contract transferred to the respondent in March 2015 under TUPE. The ERO minimum rate increased from €9.50 to €9.75 on the 1st of October following the transfer however no increase in the NSR was applied. The NSR is an implied term of contract and the failure of the respondent to increase the rate amounts to an illegal deduction within the meaning of s. 5 of the Act.

CA-00007947-0001 The complainant commenced this employment in 2005. He works day shifts in the main but is rostered for two night shifts (Saturday and Sunday) once per fortnight since 2007. He receives 24 hours of pay at the night shift rate (NSR) per fortnight for these shifts. The NSR is not fixed but linked to the basic rate of pay in that it amounts to 133.4% thereof. On the 1st of June the ERO basic rate of pay increased to €9.05 and the NSR increased pro rata to €12.08. The rate was increased to €12.68 to reflect the increase in the ERO basic rate to €9.50 on the 1st of June 2008. Both increases were applied and paid. The complainant’s contract transferred to the respondent in March 2015 under TUPE. The ERO minimum rate increased from €9.50 to €9.75 on the 1st of October following the transfer however no increase in the NSR was applied. The NSR is an implied term of contract and the failure of the respondent to increase the rate amounts to an illegal deduction within the meaning of s. 5 of the Act.

CA-00007948-0001 The complainant commenced this employment in 2006. He works 37.5 hours per week together with one additional Sunday night shift each fortnight. He is paid for 90 hours per fortnight at the night shift rate (NSR). The NSR is not fixed but linked to the basic rate of pay in that it amounts to 133.4% thereof. On the 1st of June the ERO basic rate of pay increased to €9.05 and the NSR increased pro rata to €12.08. The rate was increased to €12.68 to reflect the increase in the ERO basic rate to €9.50 on the 1st of June 2008. These increases were duly applied and paid.                                    The complainant’s contract transferred to the respondent in March 2015 under TUPE. The ERO minimum rate increased from €9.50 to €9.75 on the 1st of October following the transfer however no increase in the NSR was applied. The NSR is an implied term of contract and the failure of the respondent to increase the rate amounts to an illegal deduction within the meaning of s. 5 of the Act.

CA-00007950-0001 The complainant commenced this employment in 2011. He works 37.5 hours per week together with two additional Sunday night shifts each fortnight. He is paid for 97.5 hours per fortnight at the night shift rate (NSR). The NSR is not fixed but linked to the basic rate of pay in that it amounts to 133.4% thereof. On the 1st of June the ERO basic rate of pay increased to €9.05 and the NSR increased pro rata to €12.08. The rate was increased to €12.68 to reflect the increase in the ERO basic rate to €9.50 on the 1st of June 2008. The complainant’s contract transferred to the respondent in March 2015 under TUPE. The ERO minimum rate increased from €9.50 to €9.75 on the 1st of October following the transfer however no increase in the NSR was applied. The NSR is an implied term of contract and the failure of the respondent to increase the rate amounts to an illegal deduction within the meaning of s. 5 of the Act.

Summary of Respondent’s Case:

The respondent submits that on successful tender “it operated in accordance with the due diligence and the existing Terms and Conditions of Employment.” The hourly rate of pay for staff was identified and the appropriate hourly rate for night staff is €12.68 per hour. It is clear that there is not an established relativity between the statutory minimum rate and the night shift rate (NSR). No deduction has been made in these cases. Furthermore there is no provision in the JLC for night shift premium as it is recognised that the majority of the hours worked in the industry are unsocial hours. The respondent has applied the JLC rate increase on a similar basis across five sites without complaint. The claimants herein are in receipt of a rate far in excess of the industry rate. It is further submitted that if the argument made by the claimants were to be accepted then it would go to the heart of the respondents competitive capacity and would legitimate the unsustainable argument that increases in statutory minimum rates generally should dictate increase for all rates.

Findings and Conclusions:

I am satisfied that the complainants have established that a relativity as between the minimum ERO industry rate and that of the NSR did exist and was acknowledged as an implied term of contract pre TUPE. The fact that two of the complainants have previously received increase in their NSR on foot of ERO increase is instructive.

Decision:

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

CA00007945-0001 I find that the herein complaint is well founded. I hereby require that the respondent pay the complainant the relevant net payment (being 32 cent per hour gross for each hour worked on night shift in the cognisable period of complaint less statutory deduction) in compensation for breach of s. 5 of the Act.    

CA00007946-0001 I find that the herein complaint is well founded. I hereby require that the respondent pay the complainant the relevant net payment (being 32 cent per hour gross for each hour worked on night shift in the cognisable period of complaint less statutory deduction) in compensation for breach of s. 5 of the Act.                                                    

CA00007947-0001 I find that the herein complaint is well founded. I hereby require that the respondent pay the complainant the relevant net payment (being 32 cent per hour gross for each hour worked on night shift in the cognisable period of complaint less statutory deduction) in compensation for breach of s. 5 of the Act.                                                    

CA00007948-0001 I find that the herein complaint is well founded. I hereby require that the respondent pay the complainant the relevant net payment (being 32 cent per hour gross for each hour worked on night shift in the cognisable period of complaint less statutory deduction) in compensation for breach of s. 5 of the Act.                                                    

CA00007950-0001 I find that the herein complaint is well founded. I hereby require that the respondent pay the complainant the relevant net payment (being 32 cent per hour gross for each hour worked on night shift in the cognisable period of complaint less statutory deduction) in compensation for breach of s. 5 of the Act.                                                    

Dated:   16 November 2017

Workplace Relations Commission Adjudication Officer: Michael Hayes