TUD187

Complainant’s case

The Complainant commenced work on 14^thApril 2008 with Gate Aviation (Ireland). On the 16^thDecember 2013, the Complainant was transferred to the Respondent company. Following the transfer the Respondent failed to apply the public holiday premium of normal time plus double time and the Saturday and Sunday premium. The Respondent also failed to honour the pre-existing sick pay scheme.

The Complainant raised these issues with the Respondent but did not receive a satisfactory response. The Union then engaged with the Respondent in relation to the claims and provided the Respondent with pay slips and other documents in support of their claim. The Union’s position on behalf of the Complainant is that she was in receipt of these terms at the time of transfer and therefore was entitled to bring them with her. The failure by the Respondent to honour same is in breach of the requirements set out under the Statutory Instrument. The Complainant in her evidence to the Court stated that she received her contract and a copy of the 1996 Collective Agreement in the same envelope. The terms of the Collective Agreement in relation to public holiday premium and sick leave were applied to her from the commencement of her employment until she transferred to the Respondent. The premium for Saturdays and Sundays is contained in her contract and while the value of same has diminished over time there is still a differential which she received right up to the time of her transfer.

Respondent’s case

It is the Respondent’s case that they have complied with the terms and conditions set out in the Complainant's contract which formed part of the due diligence process carried out prior to the transfer. The Respondent does not dispute that the Complainant may have received the additional terms claimed from the start of her employment up until the point of transfer. However, it is their understanding that these terms were applied in error and that the Collective Agreement should not have applied to the Complainant. It is the Respondent’s position that the Complainant was not part of the group covered by the Collective Agreement. In relation to the Saturday and Sunday premium it is the Company’s position that they have negotiated with the Union post-transfer a new base rate which includes the Saturday and Sunday premium and that the Complainant is on that rate.

The applicable law

Rights and obligations; Article 4

(1)The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

(2)Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

Discussion and Decision

Article 4(2) of the Regulations cited above clearly states that the Transferee shall observe terms and conditions agreed in any Collective Agreement. It is not disputed that the Complainant had prior to the transfer the terms of a Collective Agreement applied to her. These terms were applied from the date she commenced employment for a period of five years and eight months until the date of transfer. However, the Respondent’s position is that the collective agreement was applied in error and that this was confirmed by the Transferor when they raised the issue with them post-transfer.

It is clear from the submissions of both parties and the oral submissions made on the day that the Complainant was not informed prior to the transfer that an error had been made nor was she informed at or shortly after the transfer. It only became apparent after the transfer that the terms and conditions she had previously enjoyed had been changed. She then raised the issue with the Respondent.

In the circumstances of this case the Court finds that the Complainant was in receipt of enhanced terms and conditions arising from a Collective Agreement at the time of transfer and is therefore entitled to have those terms recognised and applied by the Respondent from the date of transfer. The Court notes the Respondent’s contention that the Saturday and Sunday premium was incorporated into a higher base rate of pay following negotiations with the Union and that the Complainant is in receipt of this higher base rate of pay .

The Court so decides.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
12 April, 2018Deputy Chairman



NOTE

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