Complainant

Respondent

Anonymised Parties

Supervisor

Horticultural Enterprise

Representatives

Self- represented

Respondent’s HR representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032773-001

05/12/2019

The complainant is employed with the respondent since 2006 and currently holds the position of Supervisor in the respondent’s horticultural enterprise.

His complaint is that the respondent has failed to implement the terms of a contract signed in 2010 which guaranteed him that hours worked in excess of 39 a week would yield the overtime rate for him and that the ERO failed to import these provisions into his terms and conditions. In his complaint form he specified the ERO for Contract cleaning.

His salary is €550 gross per week. He works 48 hours a week.

He submitted his complaint to the WRC on the 5 December 2019.

An Interpreter and the complainant’s daughter assisted him at the hearing.

The complainant is employed with the respondent since 2006 and currently holds the position of supervisor. The complainant clarified that his complaint is that his contract of employment, dated 16 April 2010, and unamended since that date, guaranteed that he would be paid overtime for all hours worked in excess of 39.

The advent of S.I . No 164 of 2010, Employment Regulation Order ( Agricultural Workers Joint Labour Committee), 2010 replaced his contractual entitlement to be paid overtime after 39 hours with a new threshold of 48 hours at which point overtime rates would be paid.

He cannot understand why the respondent failed to amend his contract at any stage between 2010 and   2019.

He wants the terms of his contract of 2010 in relation to overtime rates enforced,

The respondent advised that if the complaint is concerned with an alleged breach of an ERO, it is the ERO governing terms and conditions for Agricultural Workers and not the terms and conditions of employment applicable to contract cleaners.

The respondent advised that due to an error , the complainant’s contract of 2010 had not been amended to take account of S.I . No 164 of 2010, Employment Regulation Order ( Agricultural Workers Joint Labour Committee), 2010 containing new overtime thresholds. The respondent accepted that the ERO represented a loss for the complainant but the ERO had many compensatory provisions hitherto unavailable to the complainant such as paid rest breaks, Sunday premia and payment while on sick leave. Four workers were on the exact same contract and inadvertently, the respondent while he amended to other 3 contracts containing the 39-hour threshold for overtime , omitted to amend the complainant’s contract.

In July 2019 the complainant wrote to HR concerning the hours of work clause in his contract and asked why he was not paid overtime after 39 hours. The respondent met the complainant and apologised for the omission which had eluded them up to that point- not updating his contract in 2010 to mirror the provisions of SI S.I . No 164 of 2010 . They offered him a payment as a good will gesture for their error. He declined to accept this.

The overtime rate for horticultural workers is only paid for hours worked in excess of 48. This has been in effect since 2010 and the complainant has only been paid overtime since 2010 for hours in excess of 48.

The respondent presented data on hours worked by the complainant in excess of 48 hours for the three previous years and advised that he had always been paid the overtime rate for these hours.

The respondent asks the Adjudicator to dismiss the complaint.

The complaint on which I must adjudicate was cited as a complaint under the Industrial Relations Act 1946 alleging that the respondent had contravened the provisions of section 45 of the Act of 1946 as amended in failing to pay the correct rates as set out in S.I . No 164 of 2010.

The complainant is seeking to import into the ERO a term of a defunct contract signed by him in 2010 which provided for overtime rates in excess of those available in S.I 164 of 2010.

But my sole function is as prescribed in section 45A of the Act of 1946-2016 which states

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of an employment regulation order to which this section applies shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977”.

The complainant’s submission at the hearing failed to give evidence of a contravention of the terms of S.I 164 of 2010. I find that the respondent complied with the terms of S.I 164 of 2010.

While an opportunity might lie elsewhere to address the matter, my sole function is to identify if a contravention as set out above occurred. I find no such contravention.

I do not find this complaint to be well founded.

I do not find this complaint to be well founded.

ERO