Complainant

Respondent

Anonymised Parties

A security officer

Security Company

Representatives

Solicitor

Company representative

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00016918-001

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00016918-002

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016918-003

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016918-004

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016918-005

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016918-006

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016918-007

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016918-008

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016918-009

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016918-010

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016918-011

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016918-012

13/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00016918-013

13/01/2018

The Complainant is a Security Officer who commenced employment with the Respondent on 25th April 2016.

On 13th January 2018 the Complainant lodged his complaint/s with the Workplace Relations Commission. The complaint comprises of 13 separate complaints.

The Complainant is still in the employment of the Respondent and is paid in accordance with the Employment Regulation Order (ERO) for the Security Industry.

Summary of complaints is as follows:

1.       Terms of Employment (Information) Act 1994   - 2 complaints.

2.       Organisation of Working Time Act, 1997 – 8 complaints.

3.       Payment of Wages Act, 1991 – 2 complaints.

4.       Industrial Relations Act, 1946 – 1 complaint.

Summary of complaints is as follows:

Terms of Employment (Information) Act, 1994 – CA -00016918 – 001, CA – 00016918 - 002

·       Section 3 – No statement employment particulars issued to Complainant.

·       Section 5 -   No particulars of changes to terms and conditions of employment issued to Complainant.

Organisation of Working Time Act, 1997. CA – 00016918- 003/004/005/006/007/008/009/010

·       Section 14 – Sunday working premium – for period of 6 months and 12 months.

·       Section 12 – “I did not get breaks” – for period of 6 months and 12 months.

·       Sections 21 & 22 – “I did not receive Public Holiday entitlements – 6 months and 12 months.

·       Section 20 –“I did not receive paid holiday / annual leave” – 6 months and 12 months.

Payment of Wages Act, 1991 - CA – 00016918 – 011, CA – 00016918 – 012.

·       “My employer has not paid me properly, shortage €1,000 – 6 months”

·       “My employer has not paid me properly, shortage €1,000 – 12 months”

Industrial Relations Act 1946 – CA 00016918 -013.

·       “I have not been notified of Employment Regulation Order for the Security Industry”.

The Respondent maintains that the terms and conditions of the Complainant are in accordance with the Employment Regulation Order (ERO) for the Security Industry and in accordance with legislation.

In relation to Terms and Conditions of Employment – the Complainant was issued with a contract of employment on 25/04/2016 (start date) and also a employee safety handbook.

Organisation of Working Time Act, 1997.

The Complainant is receiving his Public Holiday Entitlements and all Annual Leave entitlements. The Respondent operates a holiday year of January to December and the Complainant is entitled to 20 days’ annual leave.

Sunday premiums are paid to the Complainant.

Payment of Wages Act 1991.

The Complainant has received payment for all hours worked. Wage slips are available for inspection.

Employment Regulation Order.

All employees are notified by email.

The Respondent in this case is a security company who appear to be trying to do everything right.

Terms of Employment (Information) Act 1994.

The Complainant was issued with a contract of employment on the day he commenced employment. There is no breach of section 3 of this Act.

In relation to changes to the contract / terms of employment, the only change that may occur is when the rate of pay increases via the Employment Regulation Order, S.I. No.231/2017.

Under section 5 of this Act whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter but not later than……

This does not apply in relation to a change occurring in provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 of the Act. The Employment Regulation Order is an instrument made under statute and therefore there is no breach of section 5 of this Act.

Organisation of Working Time Act 1997.

The Complainant admitted at hearing that it is rare that he may miss a break or rest period, he has only raised the issue once with the Respondent.

The Respondent produced a report at the hearing that shows he was getting his breaks.

Sunday premiums are paid to the Respondent, as shown on payslips produced at hearing.

The Complainant receives his entitlements to annual holidays and Public Holidays.

Payment of Wages Act 1991.

There is a breach of the Employment Regulation Order in relation to payment for overtime.

It was stated at hearing that the Complainant’s working hours vary very little from week to week.

The ERO states:

Overtime rates shall apply as follows: -

(a)    All hours worked in excess of an average 48 hours per week in the roster cycle will be paid at a rate of time and a half.

(b)    A rostered cycle shall be a predetermined working pattern which can be up to a maximum of six weeks, which has been issued to the worker in writing prior to the commencement of the roster cycle.

In a situation that sees very little variation of hours from week to week I interpret this as being a one week roster cycle and would expect that hours in excess of 48 hours in any week would be paid at the rate of time plus one half.

The Respondent should now check the period of six months ending on 13/01/2018 and pay overtime worked in excess of 48 hours per week. If, for example, a week shows that 52 hours were worked the amount owing to the Complainant is 2 hours presuming that 52 hours were paid at basic rate.

Industrial Relations Act – Section 45A.

I am satisfied that all employees are notified when changes to the Employment Regulation Order take place.

In summary I have no alternative but to fail all complaints received with the exception of the one referred under the Payment of Wages Act 1991 (CA – 00016918 – 011). The Respondent and the Complainant should go over the hours worked in the six month period ending on 13/01/2018 and apply the ERO in relation to a one week rostered cycle. There is no good cause for the extension of the time to 12 months, therefore complaint CA – 0016918 – 012 fails.

In summary I have no alternative but to fail all complaints received with the exception of the one referred under the Payment of Wages Act 1991 (CA – 00016918 – 011). The Respondent and the Complainant should go over the hours worked in the six month period ending on 13/01/2018 and apply the ERO in relation to a one week rostered cycle. There is no good cause for the extension of the time to 12 months, therefore complaint CA – 0016918 – 012 fails.