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This matter came before the Court as an appeal by Keyguard Security Limited (the Appellant) against a Compliance Notice issued by the Workplace Relations Commission (the Respondent) in accordance with the Workplace Relations Act, 2015 (the Act) at Section 28(1).

The Compliance Notice confirmed that an Inspector of the Respondent was of the opinion that the Appellant had contravened the Organisation of Working Time Act, 1997 (the Act of 1997) at Section 14(1). The order required the Appellant to commence paying applicable Sunday premium to affected employees and pay any arrears since 9^thJanuary , 2016.

The Law

The Compliance Notice at issue before the Court stated that a contravention of the Act of 1997 at Section 14(1) had occurred.

The Act of 1997 at Section 14(1) provides as follows

• 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.

• 28. (1) Where an inspector is satisfied that an employer has, in relation to any of his or her employees, contravened a provision to which this section applies, the inspector may serve a notice (in this section referred to as a “compliance notice”) on the employer.

• (a) state the grounds for the inspector’s being satisfied that there has been a contravention referred to in subsection (1),

  (b) for the purpose of ensuring compliance by the employer concerned with any employment enactment, require the employer to do or refrain from doing such act or acts as is or are specified in the notice by such date as is so specified, and

  (c) contain information regarding the bringing of an appeal under subsection (7) against the notice, including the manner in which an appeal shall be brought.

The Compliance Notice under appeal identified the Section of the Act which had been contravened as Section 14(1). That Section of the Act identifies that 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.

A Compliance Notice issued in accordance with the Act at Section 28 must, in accordance with the Act at Section 28(2)(a), set out the grounds for the inspector being satisfied that there has been a contravention referred to in the Notice . The within Compliance Notice set out the grounds for its issuance as follows:

• “Employer has failed to compensate employees for Sunday. Employer has confirmed no additional amount is paid above the statutory minimum rate as detail (sic) in the ERO. Payroll affirms this.”

The Respondent raised as a preliminary matter the issue of time limits as applying to the within appeal.

The Act at Section 28(8) provides as follows:

• 28 (8) An appeal under subsection (7) shall be brought in the manner prescribed by rules under subsection (5) of section 20 of the Act of 1946 not later than 42 days after the service of the compliance notice concerned.

The Appellant submitted that the appeal of the Compliance Notice was made to the Court using the form provided by the Court and that this appeal was received by the Court on 10^thMay 2017. The Appellant submitted that, having made the appeal, it had subsequently been contacted by the Court and had been asked, in consideration of certain deficiencies in the completion of the form submitted on 10^thMay 2017, to submit a fresh Appeal Form which the Appellant did. That fresh Appeal Form was received by the Court on 22^ndMay 2017. The Appellant submitted however that the appeal of the Compliance notice at issue was made to the Court on 10^thMay 2017 and was made within the time limit specified in the Act.

The Court established at the hearing that an appeal was received from the Appellant on 10^thMay 2017. It is clear that the Appeal Form received by the Court on that date was deficient in certain details including a failure to identify the Compliance Notice under appeal, incorrect identification of the Act under which the Appeal was being made and a failure to identify a Respondent.

The Act requires that an appeal “shall be brought in the manner prescribed by rules under subsection (5) of section 20 of the Act of 1946”. The Court has made such rules and they are entitled ‘Labour Court (Employment Rights Enactments) Rules 2016’. Those Rules at Part II Section 21 state as follows:

• 21. An appeal against the decision of an Inspector to issue a compliance notice under section 28 of the Workplace Relations Act 2015 shall be initiated within 42 days of the date on which the compliance notice was served using a form provided for that purpose. The notice of appeal shall contain a statement of the grounds of appeal.

The hearing of the Court was convened to consider an Appeal which was received by the Court on 22^ndMay 2017 and the Respondent was so notified. The Court proposed to the parties at its hearing that it would consider the preliminary point but that in the event that the Court considered that the appeal was not out of time by virtue of the existence of an appeal dated 10^thMay 2017, a separate hearing would not be required in respect of that appeal. The parties agreed to the proposal of the Court.

The Court has considered the submissions of the parties. The Court notes that the Appeal made on 10^thMay, while deficient in detail, was, in accordance with the Act and the Rules of the Court, initiated using a form provided for that purpose and did contain a statement of the grounds of appeal. The Court consequently must conclude that the appeal made on 10^thMay met the specified requirements of the Act.

Notwithstanding therefore that the appeal documentation was deficient in detail and was not accompanied by the statement set out in the Rules of the Court at Section 22, the Court determines that the appeal of 10^thMay 2017 is a valid appeal and was made within the time limit specified in the Act.

Position of the Appellant

The Appellant submitted that it operates in the private security Industry and is obligated to comply with appropriate regulatory frameworks and in particular to comply with the terms of the Employment Regulation Order (ERO) for the Industry. The Appellant submitted that the ERO makes no provision for Sunday premiums or allowances.

The Appellant submitted that the rate contained in the ERO at the material time for the within matter was €10.75 per hour while at the same time the National Minimum Wage was €9.25 per hour. The Appellant submitted that the difference between the legal minimum rate deriving from the ERO of €10.75 per hour required to be paid to a Security operative / Officer and that required to be paid to workers not covered by the ERO of €9.25 deriving from the National Minimum Wage should be regarded by the Court as a Sunday premium.

The Appellant also submitted that no deductions are made from the wages of Security Officers / operatives for rest breaks of 45 minutes per shift. The Appellant submitted that this benefit should also be regarded as a Sunday premium.

The Appellant submitted that many of its competitors in the industry do not compensate for a requirement to work on a Sunday and any requirement to have the Appellant do so would place it at a competitive disadvantage.

The Appellant asked the Court to make an amendment to the ERO for the Security industry in relation to the payment of Sunday Premiums.

Position of the Respondent

The Respondent submitted that Security operatives / Officers employed by the Respondent were covered by the terms of S.I. 417 of 2015 [Employment Regulation Order (Security Industry Joint Labour Committee) 2015] (ERO) which has had effect since 1^stOctober 2015. The Respondent submitted that the rate specified in that SI of €10.75 per hour was the legal minimum payable to a Security operative / Officer and cannot be deemed to include an amount of pay to compensate employees for Sunday work. The Respondent contended that Section 42A(7) of the Industrial Relations Act, 1946 as amended makes clear that an Employment Regulation Order cannot include in a minimum rate of remuneration“compensation under Section 14 of the Organisation of Working Time Act, 1997 resulting from the requirement to work on a Sunday”.The Respondent submitted that the rate of €10.75 per hour set out in the relevant ERO cannot therefore include any element of compensation for a requirement to work on a Sunday.

The Respondent submitted that, notwithstanding the operation of the Industrial Relations Act, 1946 as amended, an employer cannot contend that any amount of pay above the statutory minimum wage can be taken as a Sunday premium. The Respondent relied on this Court’s decision in Viking Security limited and Tomas Valent [DWT1489] in support of its contentions in this regard.

Discussion and conclusions

The matter before the Court concerns a Compliance Notice issued by the Respondent requiring the Appellant to pay a Sunday Premium to affected staff with effect from 9^thJanuary 2016.

The Appellant contends that to require it to pay Sunday premiums would place it at a competitive disadvantage vis-a-vis other employers in the industry. In the alternative the Appellant contends that, in consequence of the fact that it pays a rate of pay which is above the Statutory Minimum Wage, it can be taken to compensate Security operatives for a requirement to work on a Sunday. The Appellant also asserts that it makes no deduction from pay for rest breaks and that this also should be regarded as compensation for a requirement to work on a Sunday.

The Court established at its hearing that not all staff who work on a Sunday enjoy rest breaks without a deduction from pay. The arrangement therefore has no universal application to employees who are required to work on a Sunday. As a consequence the Court cannot conclude that such an arrangement has operated as compensation for working on a Sunday. The Appellant confirmed to the Court that in the case of those employees to whom the arrangement applies no term of their contract of employment or other form of advice has been given to employees such that they would understand that the arrangement as regards rest breaks is compensation in respect of a requirement to work on a Sunday. The Court does not accept that this arrangement is compensation for a requirement to work on a Sunday.

The function of the Court in the within matter is to apply the law to the circumstances. It is no part of the Court’s function in the context of an appeal made in accordance with the Act at section 28 to take into account the competitive position of the Appellant or to otherwise assess the nature of the industry or compliance with the law therein. The Appellant asserts that a requirement to compensate for working on a Sunday will place it at a competitive disadvantage. The Court can only conclude that the Appellant is concerned that others within the industry regard themselves as not so required. It is the case that Section 14 of the Organisation of Working Time Act has universal application and the Court cannot consider in the within appeal the consequences which could be argued to flow from a wider failure, if such exists, within the industry to make the arrangements required by law to compensate employees who are required to work on a Sunday.

The Appellant asked the Court to amend the ERO for the industry. The Court has no function in the within matter of amending the ERO for the industry.

The Court notes that the Appellant pays the legally required rate of €10.75 per hour to security operatives / officers. The Court notes that the ERO which places that legal requirement upon the Appellant makes no reference to compensation for a requirement to work on a Sunday. Indeed the rate set out in the ERO places an obligation upon employers in the industry generally to pay such staff this rate of pay regardless of whether they are required to work on a Sunday or not. In any event the Court accepts that, by operation of Section 42A of the Industrial Relations Act, 1946 as amended no compensation for the requirement to work on a Sunday can comprise an element of the legal minimum rate of remuneration established by the ERO.

The Court does not accept therefore that the rate of €10.75 per hour incorporates any element of compensation for the requirement to work on a Sunday required by the Act of 1997 at Section 14.

Determination

For the reasons set out above the Court, in accordance with the Act at Section 28(10)(a), affirms the Compliance Notice at issue in the within appeal.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CR______________________
11th September, 2017Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.