Complainant

Respondent

Anonymised Parties

A Security Officer

   A Facilities Company

Representatives

Noel Murphy, Independent Workers Union

Hugh Hegarty, Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 (Withdrawn at Hearing)

CA-00030004-001

31/07/2019

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

CA-00030004-002

31/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030004-003

31/07/2019

On 31 July 2019, the Complainants Union raised several complaints surrounding his employment as a Security Officer. The complaint under Payment of Wages Act, 1991 was withdrawn at hearing. The remaining complaints concerned notification of a change in terms of employment and pay determination with retrospection.

All claims were rejected by the respondent, a Facilities Company.

Both parties were represented and made written submissions to accompany the oral submissions.

The Union outlined the case on behalf of the complainant. He has been a Security Officer since 2000.The claims evolved following a complex employment chronology.

2000       Company A, then changed to

                   Company B, then changed to

2009       Company C renamed but still trading under Company C name.

When Company C, the respondent, took over the Security contract in 2009, the complainant was paid 7.4% above the basic rate for the job, which was underwritten by the provision of a letter of comfort to the complainant and his colleagues. The respondent has not honoured this underwriting.

The Union engaged with the respondent on June 1, 2017, who agreed to investigate the issue of retrospective payment. There was no response and the matter were referred for conciliation at the WRC. The parties did not engage at Conciliation and in July 2019, the Union sought Adjudication on three claims. The Payment of Wages claim is now withdrawn.

CA-00030004-002 Terms of Employment Act claim

The complainant was provided with a letter of comfort from the respondent in 2009. This constituted, a written notification of amendment to his terms of employment.

“We will commit that any increases agreed through the Security JLC that the same percentage increase will be applied to all staff availing of this offer “

The respondent did not comply with this letter of comfort when pay increases recommenced and this constituted a contravention of section 5 of the Act. The union contended that the complainant had not been provided with a written notification of the departure from the past assurance given. The complainant requested the remedy of compensation.

CA-00030004-003 Industrial Relations claim

The Union outlined that historically the rate of pay for Security Officers was governed by Labour Court Joint Labour Committee Agreements (JLC). Following a High Court challenge in 2011, these agreements were deemed unconstitutional in 2011 and were subsequently restored in 2015.

On takeover of the claimant’s position in 2009, the claimant received a letter dated 11 September 2009, signed by Group CEO for Company C. This stated that the claimant would “remain on his existing hourly rate of pay and that any increases agreed through the Security JLC would see the same percentage increase applied to that rate.

The employer applied subsequent pay increases to the basis JLC rate and not to the claimants protected rate. The claimant is now seeking to make good his loss and asked for an order to pay what is rightfully his.

The Union set on the marked upward adjustments which should have followed in how the complainant’s salary was addressed vis a vis the relaunched JLC/ERO, SI 417/2015.

The Union contended that the complainant had been wrongly excluded from the percentage differential earmarked by the ERO.

Base salary €10.94                     ERO 2015 €10.01 to €10.75     7.4% increase

The claimants rate prevailed at €10.94 until June 2017 when he secured €11.24. He now earns €11.84 per hour. The flat rates were applied following each JLC recommendation but failed to take account of the claimant’s historical percentage linkage to the JLC increases.

Further EROs also passed him by and he had a projected cumulative loss of €7,551.44.

The Union sought payment of this sum as retrospection to 2015.

The respondent operates a large Facilities Business and has denied the claims advanced by the Union. The respondent confirmed that the complainant had commenced work at company A on 9 October 2000 and had commenced work with Company C in July 2009, when Company B was bought by the respondent. The respondent representative submitted that terms and conditions of employment were signed and dated, 22 February 2001 and 24 November 2004. A copy of both were submitted as requested.

The respondent confirmed that the complainant was issued with a letter of comfort at the time of the sale in 2009 assuring him that arising from the purchase, all terms and conditions would be honoured by the respondent.

In July 2011, the High Court ruled that the JLC system was unconstitutional in the case of John Grace Fried Chicken ltd and Ors v the catering JLC and Ors [2008 No 10663 P]. Following this decision, the respondent submitted that all Employment Regulation Orders (ERO) also ceased to have statutory effect from 7 July 2011.

June 2017 gave rise to the current Security Industry ERO which secured minimum rates of pay for those in the security Industry.

The complainant has received all increases and has been in receipt of a rate of pay compliant with the ERO and maintained the rate above that of the complainant’s core rate of pay.

Preliminary Issue:

The respondent challenged the Unions leading with both the claim under the Payment of Wages Act and Industrial Relations simultaneously. The representative submitted that these were identical complaints and the complainant should elect which claim he wished to proceed with as a recommendation and decision by an Adjudicator cannot follow the same complaint.

The respondent went on to submit that the letter of comfort dated 2009 referred to the JLC in place at the time. The respondent submitted that the enduring impact of John Grace centred on a void as if the legislation had never existed. Therefore, any term of employment such as the letter of comfort which refers to the “JLC rate” is no longer in effect.

The respondent contended that it must follow then that point 5 of the letters of comfort must be viewed as severed from any agreement and the respondent cannot be bound by the term, regardless of changes in 2015 or later.

CA-00030004-002 Terms of Employment Act claim

The respondent submitted that the claim was submitted outside the statutory time limit provided in Section 41(6) of the Workplace Relations Act 2015.The dateline referred in the complainants claim centred on June 2017 and the complainant was not submitted until 31 July 2019.

The respondent has not made any change to the complainants’ terms and conditions of employment. The complainant has maintained his higher level of pay at 7.4% margin.

CA-00030004-003 Industrial Relations claim

The employer objected to the claim lodged under the Industrial Relations Act and contended that the Union were seeking unpaid wages, November 2015 -July 2019 in a manner to circumvent the limitation period set out in section 6 of the Payment of Wages Act, 1991.

The employer submitted that the claimant was not due a 7.4% increase in 2015 as the ERO did not grant an increase within the meaning of the letter but rather set a new minimum rate. In ERO 2017, increases were introduced, and the claimant received

2017   €11.24

2018   € 11.55

2019     €11.84

The employer submitted that all agreements based on the unconstitutional ERO were void in 2011. Once the ERO was reconstituted, the claimant had subsequently received all increases to his core pay in line with the current ERO.

The employer also submitted that the claimant was on a rate of €0.19 above the statutory rate.

I have taken some time to consider the case raised here by the complainant and responded to by the Respondent. I have also had regard for both copies of terms and conditions helpfully submitted by the respondent.

As a backdrop to the case , I read into the background to John Grace and how the practice of the Labour court fixing minimum wages in excess of the national statutory minimum for catering staff set conditions that were more favourable than those provided for in employment legislation , i.e. National Minimum Wage .The power of JLCs to make regulations in relation to pay an conditions was deemed invalid .

Justice Feeney deemed that the relevant sections of IR Acts 1946/1990 which gave rise to JLC were considered unconstitutional in terms of Article 15.2.1, Article 40.3 and article 43 of the Irish Constitution.

What followed was that there was no obligation to pay JLC rates to those recruited on a going forward basis.

The Troika then ordered a review of Registered Employment Agreements and Employment Regulation Orders and a report compiled by then Labour Court chairman, Kevin Duffy and Frank Walsh compiled in 2011 recommended reform rather than abolition. S.I 417/2015 Employment Regulation Order (Security Industry Joint labour committee) 2015 came into operation on October 1, 2015 and applied to workers to whom the ERO applied.

Preliminary Issue:

The Union communicated that the complainant wished to withdraw the Payment of Wages claim at hearing, leaving the remaining two claims intact.

The Respondent asked that I address the claim that the composite rate earned by the complainant failed to attract JLC increases after John Grace and only began to receive the JLC rates based on the exact wording of the JLC once the JLC was restored.

In effect, the respondent argued that the letter of comfort was made void ab initio (void from the outset) by John Grace and subsequent vacuum of JLCs.

This prompted me to review the employment documentation from Company A pertaining to the complainant. I found a clause on pay in a document signed by the complainant and Company A in February 2001 “rates as specified in the JLC”

This was followed by a letter of offer referred to as “Composite Pay Rate “from company C in September 2019. However, this was then followed by a clarification communicated by the Union dated 9 December 2009 and accepted by the complainant on 23 February 2010.

“The employees covered by this claim will retain their current hourly rate of pay. This hourly rate of pay will be increased in line with any increases under future JLC ERO from January 2010 onwards.”

I then considered that the John Grace Fried Chicken ltd v Catering Joint Labour Committee and ors [2011] in July 2011 which referred to SI 142/2008, post-dated this assurance. At this moment, the complainant had an express term in his contract which linked pay to the “rates as specified in the JLC “and was endorsed in December 2009 when increases were to be increased in line with any increases under future JLCs.

The resumption of the ERO in October 2015 referred to the pre-existence of a composite pay rate such as held by the complainant and the obligation on the employer to record compliance with both rates.

Where composite rates of pay higher than the rates of pay provided for in this section are paid to workers, it shall be necessary for the employer to keep such records as are necessary to show that the above Rates of Remuneration, as defined in this section, are being complied with.

Section 14 goes on to refer to existing agreements:

This Employment Regulation Order does not affect in any way already existing agreements (if equal or better) be they local, national, official or in company.

I cannot accept that the respondent has advanced enough reason or submitted adequate evidence to support the submission that clause 5 of the September 2009 letter of comfort should be properly regarded as void ab initio in the face of the above clause.

I find in favour of the complainant on this Preliminary point

CA-00030004-002 Terms of Employment Act claim

The Union has referred to a contravention of section 5 of the Act going back to 2017. The Respondent is correct that this claim is out of time in accordance with section 41(6) of the Workplace Relations Act, 2015.

I note that the 2015 ERO re-enforced the need for parties to rely on Grievance Procedures in accordance with S.I 146/2000.

The claim is out of time. I find the claim is not well founded.

CA-00030004-003 Industrial Relations claim

I have looked very carefully at this claim and while I note that the September 2009 letter of comfort was addressed individually to the claimant. I went on to find that the clarification of company offer was directed to employees.

On inquiry, I learned that there 6 employees who were experiencing this unresolved issue.

Section 13 (1) of the Industrial Relations Act 1969 provides that:

Where a Trade Dispute (other than a dispute connected with rates of pay of, or annual leave, holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to an Adjudicator.

I note the history as submitted on this dispute and note the first in time involvement of the WRC Conciliation Service, to the point where a file has already been allocated to the dispute. I am also mindful that the parties had engaged at an earlier time to seek to resolve the issue.

Considering the restrictions provided  in section 13(1) regarding a body of workers, I must request that the parties revisit the case on file at Conciliation. If the claim is subsequently reduced to a unitary claim, I would be happy to explore the matter further.

For now, I must show deference to the WRC conciliation service and urge the parties to re-engage at that forum please on the basis that the claim relates to a body of workers.

I have not found merit in this Dispute.

Decision and Recommendation:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00030004-002 Terms of Employment Act claim

Section 7 of the Terms of Employment (Information) Act 1994 requires that I provide a decision in accordance with Section 5 of that Act.

I have found that the claim was submitted outside the statutory time limit and is not well founded. CA-00030004-003 Industrial Relations claim

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have not found merit in the Dispute.

Employment Regulation Order