PWD189

The Adjudication Officer found in favour of the Complainant in relation to his complaint and directed that his salary be increased by 32 cent per hour gross for each hour worked on the night shift in the cognisable period.

The cognisable period for the purpose of the Act is 3^rdMay 2016 to the 2^ndNovember 2016 the date the complaint was lodged with the WRC.

In this Determination, the parties are referred to as they were at first instance. Hence Noonan Services Group LTD is referred to as the ‘Respondent’ and Arthur Zbien as ‘the Complainant’.

Background

The Complainant came to work for the Respondent following a transfer of undertakings in March 2015. At the time the transfer occurred the Complainant was in receipt of an hourly rate of €12.68 per hour as he worked night shift. It is the Complainants contention that when the basic ERO rate increased on 1^stOctober 2015 he should have received a corresponding increase in his rate.

Complainant’s case

The Complainant commenced 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 Union on behalf of the Complainant stated that the NSR rate is not a fixed rate it is in fact linked to the basic rate of pay and amounts to 133.4% of same. This differential has been maintained through previous ERO increases and is an implied term of the Complainant’s contract. In line with the TUPE regulations all terms of his contract transferred and therefore the increase was properly payable to him. Failure to pay the increase amounted to an illegal deduction.

Respondent’s case

The Respondent took over the contract in March 2015 and understood the NSR rate to be a specific rate payment. The Respondent did not dispute that, in the past the rate may have risen in- line with the ERO but that was a decision of the employer at that time and was not binding on them. The Respondent stated that it felt the NSR rate for the Complainants was out of kilter with the industry norm. The Respondent was not aware of any collective agreement confirming that the rate would automatically rise with the ERO. The Respondent produced a spread sheet which had formed part of the due diligence process which listed the hourly rate of all staff that transferred. In the column headed “subject to pay scale (Yes/No)” the words “as per JLC” were typed against the Complainants pay rate in the same manner as it was against the staff who were paid the basic rate of pay. The Respondents position is that they understood this to mean that the ERO rate applied to staff on the basic rate but in relation to the Complainant they understood it to mean that he was not on a pay scale. The Respondent had not sought clarification on this understanding.

The Applicable Law

Section 1 of the Act states:

wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section5(6) states;

• “Where—
  • (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

    (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

  then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

It is not disputed that in the past the employer awarded increases in line with increases that fell due under ERO’s as they arose. This maintained a consistent differential between the night rate of pay and the day rate of pay. The due diligence document relied on by the Employer would suggest that both the basic rate and the night rate were adjusted in line with the ERO’s. In those circumstances the Court is of the view that the increase was properly payable.

Conclusion

The Court finds that the increase of 32 cent gross an hour to maintain the differential with the basic rate was properly payable to the Complainant and therefore the Court upholds the Adjudication Officer’s decision.

The Court so decides.

Signed on behalf of the Labour Court



Louise O'Donnell
LS______________________
28 March 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.