ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020197
Parties:
Anonymised Parties
A Security Supervisor
A Security Company
Representatives
Complaint(s):
Act
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)
CA-00026609-001
27/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)
CA-00026609-002
27/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)
CA-00026609-003
27/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)
CA-00026609-004
27/02/2019
Date of Adjudication Hearing: 16/04/2019
Workplace Relations Commission Adjudication Officer: Marian Duffy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant is employed as a security supervisor since 27th August 2009. He was transferred under TUPE to the Respondent company on the 8th January 2018 and he is claiming that his employer changed his contract of employment following the transfer.
Summary of Complainant’s Case:
The Complainant states he was transferred from Company X to the Respondent company on the 8th January 2018 and his contract of employment at the time of the transfer provided that he would be paid fortnightly. In December 2018, the Respondent informed the employees that they were changing from fortnightly pay to weekly pay. The Complainant said he objected to this change. The change came into operation in February 2019. He said that when they were transferred under TUPE he was assured by the Respondent that nothing would change, and he would not be forced to sign different terms and conditions of employment. He submits that by transferring him to weekly pay that there is a change in the terms and conditions of his employment which is a breach under the Regulations.
Summary of Respondent’s Case:
The Respondent said that it acquired Company X under TUPE and this Company was taken over by Company Y in October 2018. Following this takeover, it was decided to rationalise the payroll system between the 2 companies. The Respondent company had 5 different payroll periods; between weekly, fortnightly and monthly which was deemed to be not economically viable. It was decided to make the payroll staff redundant and to transfer payroll to Company Y and that the same pay period would be applied to all the staff and this was the reason for transferring the Complainant to weekly pay.
Findings and Conclusions:
The relevant law is Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. This transposes the European Directive 2001/23 “on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertaking or businesses or parts of undertakings or businesses.”
Article 3(1) of the Directive which has been transposed in the Regulations as Regulation 3, provides that:
“The transferor’s rights and obligations arising from a contract of employment or an employment relationship, existing on the date of a transfer, shall, by reason of such transfer, be transferred to the transferee.”
Regulation 9. (2) provides: “A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by these Regulations shall be deemed to be modified so as not to be less favourable.
(3) Nothing in these Regulations shall be construed as prohibiting the inclusion in an agreement of a provision more favourable to an employee than any provision of these Regulations.”
The Complainant provided no evidence, other than to say that the change to his contract was a breach of the Regulations, on how the change from fortnightly to weekly pay impacted on him or was a less favourable condition in his contract. For this reason, I find that the complaint is not well founded.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the complaint is not well founded.
Dated: 29.4.19
Workplace Relations Commission Adjudication Officer: Marian Duffy
Key Words:
TUPE Regulations, change to contract of employment.