Complainant

Respondent

Anonymised Parties

A Security Person

A Security Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031812-001

24/10/2019

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

CA-00031812-002

24/10/2019

The complainant submits that he did not receive Sunday premium and that he has not received appropriate conditions under an Employment Regulation Order (Security Industry Joint Labour Committee) 2017, SI No 231 of 2017 hereinafter referred to as the ERO.

At the start of the Hearing, the complainant and respondent agreed to change the name of the respondent.

The complainant commenced employment in 1997 and on 21 October 2019 a Transfer of Undertakings (TUPE) took place. The complainant submitted that he did not receive Sunday premium during the cognisable period when the complainant worked 48 hours on Sunday, namely April 28, June 9, June 23 and June 30th, 2019.

It was submitted that the hours were worked before the transfer occurred but that all obligations of the transfer transferred to the transferee on the date of transfer and that the appropriate premium which should be paid was time plus one third.

Case law cited included Viking Security Ltd & Valent DWT1489, J Donoghue Beverages Ltd & Murphy TUD185, Berg v Besselsen Joined Cases 144 & 145/87.

The respondent submitted that the complainant lodged a complaint claiming for Sunday premium during the cognisable period which was six months prior to the transfer. It was submitted that the respondent was not aware of this complaint and the respondent is in compliance with the Organisation of Working Time Act. The respondent outlined that that the transferor cannot simply pass on their liability under statue to the incoming employer and Grosvenor Cleaning Services Ltd v SIPTU clearly set this out. It was outlined that Sunday premium is not just contractual but is also derived from statue and that the complainant had adequate opportunity to seek redress from the transferor but did not do so.

The respondent submits that it was not the intention of the Directive or the Regulations that an employer could escape liability incurred as a consequence of a failure to fulfil a statutory duty and that the complainant had not furnished sufficient evidence in relation to the alleged time worked on Sunday. Furthermore, the ERO in place is SI 231 of 2017 is silent on the rate of pay to be paid on Sunday and the respondent applies a rate of €0..50 per hour which it was submitted is reasonable in the circumstances.

Section 14 of the Act provides that

“(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

( d) by a combination of two or more of the means referred to in the preceding paragraphs.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

It was not in dispute that a transfer occurred in October 2019 and that very shortly after the transfer, the complainant submitted a claim for Sunday premium. The complainant submitted that he worked 48 hours during the cognisable period: April 28, June 9, June 23 and June 30th. The complainant had not submitted a complaint previously as he was not aware of his entitlement to Sunday premium.   The instant respondent pays a Sunday premium of €0.50 for Sunday working.

No records from the transferor were available and the complainant submitted text messages by way of supporting his evidence that he had worked 48 hours over the cognisable period and I am satisfied that based on those, the complainant did work a total of 48 hours on Sundays during the cognisable period.

While I note that this is not a complaint under the Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003), the respondent does set out that they have no responsibility for what has been provided for by statute as referenced in Grosvenor Cleaning Services Ltd v SIPTU

Directive 2001/23/EC (‘the Directive’), transposed into domestic law by the Regulations, provides in the first paragraph of Article 3(1) that “The transferor’s rights and obligations arising from a contact of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee”. The second paragraph of Article 3(1) of the Directive includes an optional provision which permits a Member State to derogate from the strict terms of the first paragraph of Article 3(1) as follows:

“Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.”

The Irish State did not transpose into domestic legislation this optional provision in relation to joint and several liability. This was dealt with in significant detail in TUD183 (J Donoghue Beverages Limited V Elizabeth Collins) by the Labour Court where they set out following a transfer of undertakings within the meaning of the Regulations, the liability for the “transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer” rest with the transferee.  

The respondent submits that as per Grosvenor Cleaning Services Ltd v SIPTU, it should be the transferor who bears responsibility for the complaint, however, I note the uniqueness of the Grosvenor case which was, unlike this instant case, a complaint against the transferor and which dealt with obligations for accrued annual leave, over a significant period of time, and it was expressly agreed between the said parties that the transferee would not be liable for any holiday entitlements. No such agreement existed in the instant case between the transferor and the transferee (the respondent).

I find that the complainant’s complaint is therefore well founded and taking note that the respondent pays a Sunday premium of €0.50 per hour, I order the respondent to pay the complainant €50.

Preliminary Issue:

In response to the preliminary issue as to whether a second complaint had been submitted, the complainant advised that it was contained within the complaint form

Substantive Issue:

It was submitted that Section 2(14) of the Employment Regulation Order SI No 231 of 2017 which applies to the complainant, sets out an entitlement for workers to be offered a contract of employment with a minimum of 24 hours per week after 6 months service.

The complainant submits that he was not offered a minimum of 24 hours per week in the six months prior to the complaint despite his availability and it was submitted that the transfer rights and obligations on a transfer of undertakings apply as referred to in CA-00031812-001 also apply for this instant complaint

Preliminary Issue                                                                     

The respondent submitted that they were not on notice of a second complaint.

Substantive Issue

Not withstanding, that the respondent submitted that they were not on notice of a second complaint, the respondent submitted that the transferor cannot simply pass on their liability under statue to the incoming employer and they submitted that Grosvenor Cleaning Services Ltd v SIPTU clearly set this out. It was outlined that obligations under the ERO are also derived from statue and that the complainant had adequate opportunity to seek redress from the transferor but did not do so.

The respondent submits that it was not the intention of the Directive or the Regulations that an employer could escape liability incurred as a consequence of a failure to fulfil a statutory duty and that the complainant had not furnished sufficient evidence in relation to hours provided to the complainant.

Preliminary Issue:

The respondent submitted that they were not on notice of CA-00031812-002 and the complainant submitted that it was set out in the WRC complaint form. I note that there had been a number of similar complaints submitted against the respondent to the WRC at the time but that CA-00031812-002 was clearly set out in the notification notice from the WRC regarding the instant complainant. The respondent did not seek an adjournment in relation to this complaint and proceeded with a submission. I am satisfied that the complaint was submitted and that the respondent was properly notified of same.

Substantive Issue:

Section 2(14) provides that

(14) Minimum Hours of Employment

Workers who enter the industry will be offered a contract of employment with a minimum of 24 hours per week after 6 months’ service. If it is required for operational purposes that the contract hours available are less than 24 hours per week, and it is demonstrably so, then this clause will not

apply and new workers may be employed for hours that are less than provided for in the ERO. While the ERO will cover all workers including existing workers, it will not impact any current arrangements agreed by the employer/worker whereby the hours are less than those provided for in the ERO.

It was not in dispute that a transfer occurred in October 2019 and that very shortly after the transfer, the complainant submitted a claim that he had not been offered a minimum of 24 hours per week in the six months prior to the complaint. No records from the transferor were available and the complainant submitted text messages by way of supporting his evidence of what he had been offered by the transferor and I am satisfied that based on those, the complainant was offered less than the contract hours provided for in the ERO.

While I note that this is not a complaint under the Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003), the respondent does set out that they have no responsibility for what has been provided for by statute as referenced in Grosvenor Cleaning Services Ltd v SIPTU.

Directive 2001/23/EC (‘the Directive’), transposed into domestic law by the Regulations, provides in the first paragraph of Article 3(1) that “The transferor’s rights and obligations arising from a contact of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee”. The second paragraph of Article 3(1) of the Directive includes an optional provision which permits a Member State to derogate from the strict terms of the first paragraph of Article 3(1) as follows:

“Member States may provide that, after the date of transfer, the transferor and the transferee shall be jointly and severally liable in respect of obligations which arose before the date of transfer from a contract of employment or an employment relationship existing on the date of the transfer.”

The Irish State did not transpose into domestic legislation this optional provision in relation to joint and several liability. This was dealt with in significant detail in TUD183 (J Donoghue Beverages Limited V Elizabeth Collins) by the Labour Court where they set out following a transfer of undertakings within the meaning of the Regulations, the liability for the “transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer” rest with the transferee.  

The respondent submits that as per Grosvenor Cleaning Services Ltd v SIPTU, it should be the transferor who bears responsibility for the complaint, however, I note the uniqueness of the Grosvenor case which was, unlike this instant case, a complaint against the transferor and which dealt with obligations for accrued annual leave, over a significant period of time, and it was expressly agreed between the said parties that the transferee would not be liable for any holiday entitlements. No such agreement existed in the instant case between the transferor and the transferee (the respondent).

I find that the complainant’s complaint is therefore well founded and taking and I order the respondent to pay the complainant €300.

CA-00031812-001

I find that the complaint is well founded and order the respondent to pay the complainant €50.00

CA-00031812-002

I find that the complaint is well founded and order the respondent to pay the complainant €300.00

Sunday premium, transfer of undertakings, ERO